Labor and Employment Law Cocktail

NLRB Pushes Ahead with Election Changes By Timothy M. McConville, Esq.

The National Labor Relations Board (“NLRB” or the “Board”) on November 30, 2011, voted two-to-one to approve a resolution to amend procedures that govern the NLRB’s conduct of certification elections.  The amendments are designed to limit the time between the filing of a certification petition and the conduct of an NLRB secret ballot election.  The resolution called for a final rule to be drafted and subject to approval by the Board.  Board Chairman Mark Pearce and another former union lawyer now serving on the Board, Craig Becker, have been reported to want adoption of a final rule before Becker’s term expires at year’s end.  Expiration of Becker’s term will leave the Board with only two members and lacking a quorum.

The resolution adopted by the Board contained six amendments to Board procedures, all of which are aimed at limiting the time employers and employees have to communicate among themselves regarding the prospect of a union in the workplace.  The amendments would give NLRB hearing officers authority to limit evidence and issues presented in pre-election hearings and also to decide whether to deny parties the opportunity to file briefs.  The amendments also would eliminate the right to seek Board review of pre-election rulings and allow an election to proceed despite the existence of significant issues relating to appropriateness of units and voter eligibility.  In addition, the proposed amendments would narrow opportunities for appeal of issues relating to the election process.

The proposal approved by the Board excluded other significant changes to Board procedures which had been included in a proposed rule issued by the Board on June 22, 2011.  Among the proposed amendments excluded from the resolution adopted by the Board on November 30 are provisions for electronic filing of petitions, a requirement that hearings be set for seven days after service of the notice of hearing, a requirement of the statement of position filing, inclusion of email addresses and phone numbers in the voter list, and a change of the period for filing the voter list from seven to two work days.

As further explained in another blog post, the effect of the NLRB’s proposal would be significant.  By shortening the time between petition and election, the Board’s proposal would reduce the time employers and employees have to communicate among themselves regarding union issues, which would lead to an increase in organized labor’s election win rate.  As a result, employers should consider proactive measures to prepare for a higher risk of organizing, including regular supervisor training in labor relations and communications to employees regarding how a union in a workplace can affect them.  Effective communications with employees on labor relations can be accomplished through meetings with employees, letters and flyers, and the employer’s own notice postings, all of which should be considered by employers. 

New Employee Personal Conflict of Interest Rules Now Effective By Matthew R. Keller, Esq.

Last month, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration issued a new change to the Federal Acquisition Regulation (FAR) that will affect federal government contractors who have employees that support government acquisition functions.  The change became effective December 2, 2011.

The new rule, which is being implemented by a newly created FAR Subpart 3.11 and a related contract clause, requires contractors working under “covered contracts” to identify and prevent personal conflicts of interest of their covered employees, and prohibit covered employees who have access to non-public information by reason of performance on a government contract from using that information for personal gain.  A “covered contract” is one that exceeds $150,000 and involves performance of acquisition functions closely associated with inherently governmental functions for, or on behalf of, a federal agency.

The definition of “acquisition function closely associated with inherently governmental functions” is very broad.  It includes “supporting or providing advice or recommendations with regard to:”

-        acquisition planning,

-        developing statements of work,

-        developing solicitation evaluation criteria,

-        evaluating proposals,

-        awarding contracts,

-        administering contracts,

-        terminating contracts, and

-        determining the allowability of costs, among other functions.

 In order to comply with the new FAR clause, contractors will be required to establish internal procedures to screen employees for potential personal conflicts of interest by requiring each affected employee to disclose interests that may be implicated by the employee’s work.  This includes financial interests of the employee and his or her close family members and other members of his or her household.  In addition, the covered employee will be required to update his or her disclosure statement whenever circumstances change in a way that may create a new personal conflict of interest. 

All covered employees will also be required to sign a non-disclosure agreement to prohibit disclosure of non-public information learned through performance on a government contract.  The new rule does not prescribe any particular forms of disclosure statement or non-disclosure agreement that must be used to satisfy the rule. 

In addition to developing a new compliance program for the contractor employee personal conflict of interest avoidance program, the regulation also mandates contractor self-reporting and also that prime contractors flow the requirement down to subcontractors.            

Strangely, while the new clause, as prescribed in FAR Subpart 3.11, must be included in all solicitations and contracts for “covered contracts,” FAR Part 12 expressly exempts commercial item acquisition from the statute that is the basis for the new rule (the FAR definition of “commercial item” includes commercial services).  Contractors bidding on otherwise “covered contracts” that are solicited pursuant to FAR Part 12 should read the solicitation carefully to determine whether the new requirement is improperly included in the solicitation.      

The new rule applies to all contracts, delivery orders, or task orders issued after the effective date of December 2, 2011.