Wyatt Employment Law Report


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New NLRB Election Statistics Reveal Union Weakness

By George J. Miller

It has been one year since the National Labor Relations Board’s so-called “ambush” or “quickie” election rule went into effect. According to the Board, the rule was “designed to remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “streamline” the process.  In simpler terms, it was intended to speed up the process, something which organized labor and its supporters wanted so that employers would have less time to campaign before the election or, in the jaundiced view of organized labor, less time to intimidate voters.  Organized labor contended that the old process favored employers and was unfair, and that the new rule was needed to “level the playing field.”

Last week, the NLRB released data about the effects of the new rule.  As expected, the process is much faster.  In cases in which unions filed the election petition, the median number of days between the date of the filing of the election petition and the date of the election fell from 38 days in the preceding year (April 2014 to April 2015) to 24 days in the past year (April 2015 to April 2016).  This is a 37% reduction.  In cases in which the unions and employers entered into Continue reading


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McDonald’s Loses Another Round at the NLRB

By George J. Miller

McDonald'sWebsiteOn March 17th, the National Labor Relations Board (NLRB) issued another decision unfavorable to McDonald’s USA and certain McDonald’s franchisees. This was the Board’s fifth decision in this massive case, in which the unions and the Board’s General Counsel are trying to prove that McDonald’s and its franchisees are a joint employer of the franchisees’ employees, and McDonald’s is therefore responsible for any unfair labor practices of its franchisees. In the latest development, a two member majority of a three member NLRB panel agreed with an administrative law judge’s decision to severely limit the scope of documents which McDonald’s could subpoena from the unions and other non-party organizations which had assisted the unions in their efforts against McDonald’s.

The labor unions, which are the charging parties, are the Service Employees International Union (SEIU), Fast Food Workers Committee, Pennsylvania Workers Organizing Committee (a project of the Fast Food Workers Committee), Workers Organizing Committee of Chicago, Los Angeles Organizing Committee, and Western Workers Organizing Committee.

The non-party organizations which received McDonald’s subpoenas are: Mintz Group, LLC, and LR Hodges & Associates, Ltd., both private investigative firms hired by the SEIU’s law firm; Berlin Rosen, Ltd., a firm specializing in public affairs and strategic communications; and New York Communities for Change, Inc., a nonprofit advocacy organization which Continue reading


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New Data Confirms Fears about NLRB “Ambush” Election Rule

By George J. Miller

When the National Labor Relations Board implemented its new union election rule in April of this year, the prediction was that the new procedure would shorten the time between the date of the filing of the election petition and the date of the election, something which labor unions and their supporters favored but which the business community opposed.  Those who opposed it referred to it as the “ambush” election rule.  Well, the prediction was correct.  In a recent newsletter, “Democracy at Work,” Region 9 of the NLRB reported that from October 2014 through April 2015, the median number of days between the filing of the petition and the date of the election was 41 days, while between May 2015 and early September 2015, after the new rule went into effect, the number had dropped to 24.5 days.  This is more than two full workweeks less for unions and employers to campaign, which gives unions an advantage, since they have been actively organizing employees—often without the employer’s knowledge–since well before the election petition is filed.  Experts who have studied union elections report that the outcome is usually determined by the one-third of employees who are undecided at the outset.  Twenty four days is not much time to educate employees about all of the issues in a campaign, some of which are common to all campaigns and some of which are specific to each campaign.  The reduced time available to campaign means that non-union employers will need to be more proactive in their efforts to remain non-union and not wait until a campaign gets started, when it could be too late.