Larry Feheley, chair of the Labor + Employment practice, presented "NLRB Ambush Election + Persuader Rules" at a breakfast briefing at Kegler Brown on August 14, 2014. He discussed the new "Ambush Election" and "Persuader Rule" regulations that could be enacted by the National Labor Relations Board during the summer of 2014.

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Don’t Shoot the Messenger
“No one loves the messenger
who brings bad news.”
Sophocles

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Nearly of Union Workers Reside in:

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PERSUADER

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“…‘persuader activity’ refers to a consultant’s
providing materials or communications to, or
engaging in other actions, conduct, or
communications on behalf of an employer that,
in whole or in part, have the object directly or
indirectly to persuade employees concerning
their rights to organize or bargain collectively.”
[76 Fed. Reg. 36182]
Reportable Activity:

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Reportable Activities
Written materials for presentation, dissemination, or distribution
to employees
A speech for presentation to employees
Audiovisual or multi-media presentations for presentation,
dissemination, or distribution to employees
Website content for employees
Employee attitude surveys concerning union awareness,
sympathy or proneness

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Reportable Activities
Training supervisors or employer representatives to conduct
individual or group employee meetings
Coordinating or directing the activities of supervisors or
employer representatives
Developing personnel policies or practices
Conducting a seminar for supervisors or employer representatives

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Disclosures
The existence of the attorney-client relationship
The identity of the client
The general nature of the legal representation
Any fees or disbursements paid
A description of the legal tasks performed

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Reporting Trigger
“Agreement or arrangement with an employee where an
object thereof, directly or indirectly is:
To persuade employees to exercise or not to exercise, or…as to
the manner of exercising, the right to bargain collectively, or
To supply such employer with information concerning the
activities of employees or a labor organization in connection
with a labor dispute.

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“All receipts and disbursements from
any employers for whom ‘labor
relations advice and services’ have
been rendered including…for…
services and advice which would
not…have required the LM-20 report.”
LM-21 Form

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MEAN?

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“Times They Are A-Changin’”
Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
There’s a battle outside
And it is ragin’
It’ll soon shake your windows
And rattle your walls
For the times they are a-changin’
Bob Dylan, 1963

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RIGHT NOW?

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Exclusive Representative Status
Union can become the exclusive
representative of employees if:
The union presents a showing of interest
(authorization cards, petition) from more
than 50% of the employees and the employer
voluntarily recognizes the union; or
The union files a petition with the NLRB,
supported by at least a 30% showing of
interest, and the union wins a secret ballot
election

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Secret Ballot Election
After the petition is filed, the NLRB schedules an election
Each side is permitted to communicate their views on organization to
the employees
Unlawful acts by either side during the “laboratory period” can
invalidate the election results
The NLRB conducts a secret ballot election
Employees who have signed authorization cards can vote any
way they want
The union wins the right to be the exclusive representative
if it receives more than 50% of the votes cast

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Median Time from Union Petition to Election
Cases where a hearing occurs
of all elections occur within 56 days
Unions win of elections held
Elections Under Current Rules

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So, What is the Union’s REAL
Problem with the Current Law?

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Unions are a Business
The key to the union’s business is membership dues

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The time allowed between
the filing of an election
petition and the election will
be dramatically shortened.

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“We will no longer probe into
the truth or falsity of the
parties’ campaign statements.”
Shopping Kart Food Market,
228 NLRB 1131 (1977)

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SCHEDULES

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Current Election Process
Days Total
Petition Filed
Hearing 7-14 7-14
Employee List 7 17
NLRB Review/Waiting Period 25 32-39
Election 39-56
Objections Filed 7
Proposed Election Process
Days Total
Petition Filed
Hearing/Statement of Position 7 7
Employee List 2 9
Election 10 19
Objections 7 26
Hearing on Unit/Objections 13 33

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“If they only hear
one side…”

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Disadvantages to Union
Membership
Mandatory dues and assessments
Strikes
Rules favor lowest performers
Union corruption
Companies moving or going out of business

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You will be required to give
personal information about
your employees to the union.

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Information Given to the Union
Employee name
Employee phone number
Employee email address
Employee department + shift

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Additional Changes
Employer’s Statement of Position
Reduced Ability to Challenge Voter Eligibility
No guaranteed appeals to full NLRB

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Employer Statement of Position
1. Burdensome informational requirements
2. Inadequate time to prepare
3. Request a waiver of rights for issues not raised
4. Forecloses the right to challenge important issues –
like unit composition and eligible voters – before the
election

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WHAT NOW?

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Reasons to do Nothing
There is no chance a union would want to organize our
workforce
There is no way our employees will fall for union
propaganda
We can mount an effective counter-campaign in a
week’s time

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?

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Common Reasons for Union Interest
Failure to solve employees problems
Poor communications (up and down)
Safety concerns
Perceptions of unfair treatment
Unkept promises
Lack of courtesy, respect and/or recognition
Perception of job insecurity
Pay or benefits that are not competitive
Inflexible attendance requirements

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Review your HR
practices and fix what
you can fix.

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Review your HR practices +
fix what you can fix

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Identify your supervisors
+ managers

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Train + prepare your
supervisors

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Supervisor Discussions
How to “detect” early warning signs of union activity
How unions work and organize
What are authorization cards – and what to say about
them
How to respond lawfully to union conduct and promises
How to encourage and respond to questions
Points to discourage interest in unions

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Designate a quick response
team

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The Proposed Rules Will
Permit union organizers to conduct stealth organizing campaigns
until they feel it is advantageous to request an election
Ambush the employer with a quick election just days after the
election petition is filed
Deny employees sufficient time to educate themselves about the
truth of the union propaganda and the effects of unionization
Deny employees the time and opportunity to organize in
opposition to the union
Force employers to turn over personal information on
employees, exposing them to inundating emails, home
visits and intimidation

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Thank You!
Lawrence Feheley, Director
Kegler Brown Hill + Ritter
lfeheley@keglerbrown.com
keglerbrown.com/lawrencefeheley
614-462-5432