THE END OF AN ERA? THE NLRB’S ASSAULT ON FREE SPEECH

There is an alarming connection between the National Labor Relations Board’s much-publicized decision to file a complaint against Boeing, covered previously on this blog HERE and HERE, and the new proposed election rules which the NLRB announced a few weeks ago.  Put simply, both actions are part of the Board’s recent effort to severely curtail employer free speech rights.

A few weeks ago, the Board alleged that Boeing committed an unfair labor practice merely by stating that strikes were one factor in its decision to choose South Carolina as the location to build the 787 Dreamliner.  By actually filing a complaint against Boeing over this issue, the Board showed its desire to undo decades of precedent standing for the proposition that, so long as they are truthfully conveying factual information and making no threats, employers need not fear being sanctioned.

Now, with its proposed rule changes, the Board is trying to drastically reduce the period of time between the filing of a petition for election and the conduct of the election, thereby reducing the opportunity for an employer to share its message.  In short, the Boeing complaint is aimed at limiting content, and the proposed rules are aimed at limiting opportunity.  While other changes are contemplated by the proposed rules (including allowing petitions for elections to be filed electronically, speeding up the related hearing process, deferring challenges on eligibility, consolidating appeals, and making Board review discretionary), the one which shortens the timing between petition and the actual election is by far the most significant.

At its core, the proposed election rule change isn’t new; it’s really just an effort to resurrect the Employee Free Choice Act (EFCA), without having to go through Congress.  By now, most know that Democrats’ efforts to pass EFCA and legislate secret ballot elections into our nation’s labor laws have failed miserably the last few years, so this is a less drastic (and procedurally easier) method of trying to work at least some of the same change into federal labor relations law.

As things now stand, an employer typically has about five weeks to campaign following the filing of an election petition.  The difficulty for employers with the NLRB’s proposed rule change is that unions often work many months on building support before filing petitions.  Because of that, the campaign period is critically important for employers to set the record straight before votes are cast.

With the proposed rules, the NLRB has proposed to shorten the campaign period to about 10-12 days.  Unions know that very few employers will be able to effectively offset months of propaganda in such a short time, so these rule changes are essentially organized labor’s consolation prize after the failure to push EFCA through.  In other words, if unions can’t get rid of secret ballot elections altogether, at least the NLRB can make it much easier for unions to win.

Employers should come together and be heard on both the Boeing case and these proposed rule changes (the latter of which is in the middle of a 60-day public comment period).  Clearly the NLRB is intent on expanding the role of unions, and if they sense little resistance to their efforts, it is reasonable to expect further efforts to restrain employer speech.

“Jack” Merinar is the leader of the firm’s NLRA team. He got his introduction to labor law in the early 1990’s seeking injunctions of picket line misconduct and handling arbitrations. By the mid 1990’s he was advising employers through union campaigns and elections. His experience with campaigns led Jack to develop a focus on advising employers how to avoid campaigns where possible.
 
» See more articles by John R. Merinar, Jr.
» Read the full biography of John R. Merinar, Jr. at Steptoe & Johnson

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