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The Death of Employer Free Speech: Labor relations and the proposed rules by the DOL and the NLRB

In a one-two punch, the DOL and the NLRB issued notices of proposed rulemaking that together seek not only to hamstring employers in communicating with employees during a union organizing effort, but also to hamstring employers in communicating with employees about unions at all. These efforts are little more than a thinly veiled attempt to circumvent Congress and salvage the Obama administration’s support from organized labor – particularly following the Employee Free Choice Act debacle. Indeed, perhaps the “transparency” repeatedly espoused in the notices would be a little more credible if the agencies just came clean and admitted their role as political pawns.

The net effect of the proposed regulations is to expedite union elections, thereby providing a further advantage to organized labor (which is already winning over 50% of elections), and to effectively kill what an employer can actually do in the truncated time they would have. With a current median election time of 38 days from the date of petition (with 95% of elections occurring within 56 days), the NLRB’s proposed rules realistically seek to reduce that time period to not much more than 20 days. The purpose of the quickie election, of course, is to allow the union to propagandize its target audience, file a petition and hold the election immediately – before employees can be educated on the fact that there is a view other than the union’s.

As if that were not enough, the DOL’s proposed rules would then create a bureaucratic marathon of red tape if an employer is so bold as to attempt to educate its employees about the consequences of joining a union (in whatever little time they would have). Assuming an employer enlists the services of an attorney or a consultant, virtually any effort to educate its workforce would require public disclosure of the nature of the advice and the fees paid by the employer. The proactive or progressive employer fairs no better. If an employer attempts to implement a policy pertaining to the employer’s position on unions (or arguably any personnel policy) and seeks the input of attorneys or consultants in doing so, the proposed regulations require disclosure of that advice and the cost. Likewise, if an employer utilizes employee surveys or forms employee committees (and enlists attorneys or consultants, or purchases such materials) that too must be disclosed to the public. Interestingly, there does not appear to be any similar requirement by organized labor if it conducts training on how to organize.

Employers and unions and governments alike rely on consultants and advisors on day-to-day issues for everything from taxes to environmental issues to financing and employee relations. Yet, employer communication regarding the right not to organize may all of a sudden become one of the most regulated forms of expression in this country. All the self-righteous rhetoric and rationalization set forth in the proposed rules cannot veil the political agenda at issue.