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News & Analysis

Publication Details

Labor & Employment News: August 2020

by A. Jack Finklea, James H. Hanson, Sara L. Pettinger, David D. Robinson, Donald J. Vogel

August 7, 2020

The NLRB’s Active 2020

Despite the pandemic, and perhaps in some instances compelled by it, the National Labor Relations Board has been quite active over the past few months. The NLRB’s case law decisions and rulemaking efforts stand to significantly affect motor carriers and other employers, particularly with respect to responding to a union election petition filed by or on behalf of employees. Transportation industry employers should therefore take notice.

The NLRB Issues Election Relief – Some of Which Is Invalidated

In response to the 2014 election rules which dramatically streamlined union representation election procedures and compressed the timeframe for holding elections, the current NLRB recently issued a regulation designed to relax those procedures. This relaxation was widely seen as a move to help employers respond to an election petition and gain valuable time to engage employees in a campaign for their support. Most notably, the NLRB sought to delay the date of an election from as little as 10-14 calendar days from the filing of a petition to at least 20 business days after a direction of election. Practically speaking, an election under the new regulation would provide employers with 6-8 weeks of time to campaign. The day before the regulation was set to take effect, however, a federal court in the District of Columbia invalidated portions of the new regulation, including the 20 business day provision. That being said, much of the regulation was permitted to take effect, including deadline extensions for preliminary matters which nevertheless have the effect of extending the timeframe of the election in a manner that allows a diligent employer potentially ample time to campaign for the support of its employees.

Mail Ballot Elections Become the Norm

The NLRB has traditionally preferred in-person (manual ballot) elections by which employees would physically appear at a voting site (usually on the employer’s premises) and place their marked ballots in a ballot box to be counted on site in the presence of any interested party. Mail ballot elections in which employees received a ballot at home and were instructed to mark and mail the ballot were seen as inferior and ordered only in special circumstances such as when a workforce was scattered. In addition, employers usually objected to mail ballot elections because they spawned low voter turnout, higher instances of voided ballots, and a reliance on the U.S. Mail that notably proved unreliable. Motor carriers particularly objected to mail ballot elections because drivers were often away from home for significant periods of time. In March, as the U.S. response to the pandemic began, the NLRB initially suspended all elections but quickly reinstated the election process, directing almost exclusively mail ballot elections. In a nutshell, health measures outweighed the shortcomings of mail ballot elections. The NLRB’s General Counsel has since issued a memo to the local NLRB Regions identifying proper protocols that would make for a return to safe, in-person elections. The local Regional Directors, however, have continued to order mail ballot elections almost exclusively.

The NLRB Looks To Shield Employee Information

Another aspect of the 2014 election rules called for employers to turn over enhanced employee contact information to the union. Specifically, in order to provide the union with the ability to solicit the support of employees, employers were forced to provide not only home addresses (which had always been required), but also home phone numbers, cell phone numbers, and email addresses of employees. Last week, however, the NLRB issued a proposed rule rolling back the information disclosure to the pre-2014 requirement that only home addresses of employees need be provided. The proposed rule is subject to a 60-day comment period before a final rule is issued and becomes effective. It remains to be seen to what extent a final rule reflects the proposed rule and whether the upcoming election plays a part in the formulation of a final rule. Until the rule becomes final and effective, employers must continue to provide the personal contact information of employees, along with explaining to employees preemptively that the disclosure is a legal requirement.

The NLRB Also Places Limits On An Employee’s Protected Speech

Employers have long lamented the inability to discipline employees for inappropriate language or attitudes in the workplace when an employee is addressing terms and conditions of employment. In short, the NLRB has placed a premium on the protected nature of an employee’s speech, even though it may sometimes reach the absurd result of creating a hostile, offensive, or abusive environment. Specifically, the NLRB recognized in last month’s General Motors LLC decision that “the Board has protected employees who engage in obscene, racist, and sexually harassing speech not tolerated in almost any workplace today” in the name of making sure employees are free to discuss their employment. The Board signaled an end to unfettered protection, and it noted a focus in the future on whether the employer would have taken action against the employer even without the protected portions of an employee’s speech or actions. Key to an employer’s response, therefore, will be whether an employer has consistently applied its policy.

The current NLRB continues to swing the pendulum toward a more employer-friendly atmosphere, in contrast with the previous administration’s swing. Helpful aspects aside, however, employers must nevertheless prepare for a union election long before an election petition is filed. Indeed, the best means of defeating a union election is to create a good working relationship with employees before the union even comes calling. We have tools to help assess vulnerabilities, develop a strong relationship, and to train managers to recognize the beginnings of a campaign and avoid improper responses.

For more information, contact Jim HansonDavid RobinsonJack FinkleaDon Vogel, or Sari Pettinger.