During the last presidential campaign, then-candidate Barack Obama proudly told audiences, “We need to strengthen our unions by letting them do what they do best—organize our workers … That's why I am fighting to pass the Employee Free Choice Act (EFCA)…We'll make it the law of the land when I'm president.” When Democrats took the White House and held onto Congress in November 2008, Obama’s promise seemed all but certain. However, EFCA, also known as “card check,” met with quick and persistent resistance from both sides of the aisle. The passage of EFCA, which at one time seemed inevitable, stalled and the bill languished in committee for the remainder of the 111th Congress.  

After the Republican gains in the 2010 midterm elections, EFCA was pushed even further from the forefront. In fact, the bill’s chance of passage during the 112th Congress is so bleak that it hasn’t even been re-introduced. Striking a less enthusiastic tone than he did two years ago, Obama stated, “frankly, we don’t have 60 votes in the Senate, so the opportunity to actually get [EFCA] passed right now is not real high.”  

As a result, the Obama administration scrambled to achieve EFCA’s end goal of eliminating employer involvement in the union representation process. The strategy was to circumvent Congress and instead direct federal agencies to propose new regulations designed to obstruct and silence employers. The president, emboldened by the new plan, announced, “what we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate.”  

Two obscure but highly influential agencies proved ready and willing to carry out the orders: the National Labor Relations Board (NLRB), a five-member adjudicatory board responsible for enforcing the National Labor Relations Act (NLRA), and the U.S. Department of Labor’s (DOL) Office of Labor-Management Standards, responsible for enforcing the Labor-Management Reporting and Disclosure Act (LMRDA). Taken together, these agencies’ new regulatory proposals represent a formidable one-two punch against employers. If allowed to take effect, these proposals largely will succeed where EFCA did not, and will put employers down for the count.   

DOL’s ‘Persuader’ Reporting Rule
One easy way to neutralize employers during the union representation process is to discourage their use of outside advice and counsel. This summer, the DOL announced a proposal to require employers to report and disclose details of any relationships they have with attorneys, consultants and even trade associations when they use these entities’ advice or materials (even indirectly) to talk to employees about unions and collective bargaining. This reverses a long-standing exemption for reporting of such activities, which traditionally have been considered “advice.”   

If the DOL has its way, attorneys and other experts who advise clients on these topics will be considered "persuaders" under the LMRDA, and will have to file intrusive disclosure reports of their own. This is problematic because employers’ advisors are sure to have strong reservations about disclosing privileged personal or client-related information. As a result, they may cease offering such services to employers altogether. Without the availability of expert guidance, many employers will be reluctant to speak to their employees about union organizing for fear of violating federal law—essentially throwing in the towel to the unions.  

Business stakeholders, including Associated Builders and Contractors and more than 500 of its individual members, blasted the DOL’s proposal, arguing it would deprive employers of their rights to free speech, association and legal counsel, and deprive employees of their right to obtain information from multiple viewpoints when they are forced to decide whether to be represented by a union. Many pointed out the proposal would harm existing businesses and impair their ability to grow and create new jobs, which the administration claims is its top priority.   

NLRB’s ‘Ambush’ Elections Rule 
Another way to silence employers prior to a union election is to drastically speed up the process. The NLRB’s proposal would cut the period for union elections from the current average of 38 days—which a top NLRB official referred to as “outstanding” and the vast majority of employers accept as a reasonable amount of time—to as little as 10 days.  

The time after a representation petition is filed is crucial for employers to consult with qualified legal counsel and other advisors, comply with a multitude of paperwork and information-sharing requirements and, most importantly, talk with employees about the advantages and disadvantages of being in a union. It’s worth noting that currently, as well as under the proposal, unions have an unlimited amount of time to plan their campaigns—in secret, if they so choose—prior to approaching the employer with a petition and starting the clock.  

Understandably, employers came out in opposition to the NLRB’s proposal, arguing it would impede employers’ ability to protect their legal rights and provide their point of view to employees prior to an election. In total, more than 70,000 comments were received, many of which adamantly opposed the plan.  

Both the NLRB and DOL regulations are currently considered proposed regulations. If the regulations are finalized as currently written, they will completely transform labor relations in the United States and throw out decades of labor relations precedent—without so much as providing basic evidence to demonstrate the need for such a drastic policy overhaul.  

Rapidly speeding up the union election process while simultaneously making it harder for employers to obtain expert advice: It’s the understated, one-two combination to EFCA’s thunderous haymaker.