Hunton Employment & Labor Perspectives

Section 302 of the Labor Management Relations Act (LMRA) is, and always has been, an odd law. Its bare terms — which make it unlawful for an employer to “pay, lend or deliver” money or any “other thing of value” to a labor union or official, or for a union to “request, demand, receive or accept” the same from an employer — can be read expansively. Its most commonly cited proscriptions carry nothing more than a general intent requirement, suggesting that one can violate its provisions inadvertently.

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Last month, the Eleventh Circuit issued an important ruling in favor of an employee who is accusing his employer and UNITE HERE of violating the Labor Management Relations Act ("LMRA") by entering into an organizing rights agreement that includes employer neutrality and employee access features.  In Mulhall v. UNITE HERE Local 355, No. 11-10594 (11th Cir. January 18, 2012), the Court reversed a lower court decision dismissing Mulhall's lawsuit.  That court had held that Section 302 of the LMRA, which forbids employers from "pay[ing], lend[ing] or deliver[ing]" money or any other "thing of value" to a labor organization, could not be construed to outlaw voluntary agreements between employers and unions that set conditions for union organizing campaigns.

Employers who thought the hotly contested issue of card check recognition had been side-lined along with EFCA should take notice of a recent decision announced by the National Labor Relations Board (the “Board”).  As predicted earlier in light of its new composition, the Board has begun to lay the groundwork to overturn established precedent giving employees the right to demand a secret ballot election in the face of voluntary card-based union recognition.

The NLRB has issued an RFI (Request for Information) to identify firms who can provide the means for employees at businesses across the country to "vote" electronically on whether they want union representation.  The idea would be that, sitting in the comfort of their own home . . . or the union hall, employees can use a computer, telephone or some other electronic means to register their choice on election day.  This method of voting, so the argument goes, avoids the "intimidation" employees may feel when voting in a voting booth by secret ballot at their place of employment.  Not only that, it would save the NLRB money by avoiding the need to send field agents to the companies where elections are scheduled.  No ballot, no voting booth, no assurance of privacy, and no protection from someone looking over the employee's shoulder, or worse, as she votes.  And electronic voting can be ordered administratively by the agency in the dead of night rather than through legislation undertaken in the light of day.