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Labor: NLRB in the news

Thanks to new rules, employers may begin to suffer labor pains

Capping off a month in which the National Labor Relations Board (NLRB) was in the news on almost a weekly basis, President Obama announced on Jan. 4 that he intended make three “recess appointments” to the NLRB: Democrats Sharon Block and Richard Griffin and Republican Terence F. Flynn. These appointments will restore the NLRB to its full composition of five members.

The board’s membership had fallen to two members one day earlier upon the expiration of another recess appointment, and the Supreme Court has ruled that the NLRB has no authority to act without a three-person quorum. Thus, without a quorum, the board would have been unable to issue rulings or new regulations.

Predictably, union officials praised the appointments as necessary to keep the NLRB open for business, while Republicans and business leaders blasted them, asserting that the president’s actions circumvented Congress and questioning whether Congress was even technically in recess at the time.

Weeks earlier, the NLRB made the news by announcing six amendments to the union election process, most notably shortening the time period between the filing of an election petition and the date of the election. While the NLRB claimed that the amendments would “reduce delays and unnecessary litigation in the pre-election process,” business interests countered that the new rules would deny employers a meaningful opportunity to educate employees on the risks and disadvantages of union representation before an election.

Indeed, many in the business community have claimed that the new rules are nothing more than a transparent attempt to boost union membership, which is at an all-time low of 6.9 percent in the American private sector.

Among other things, the amendments will:

  • Give pre-election hearing officers broader authority to limit the issues the parties can present for resolution prior to the union election
  • Allow post-hearing briefs only at the discretion of the hearing officer
  • Eliminate the automatic right to pre-election appeals to the NLRB
  • Make NLRB review of post-election disputes discretionary
  • Eliminate the 25-day waiting period following the direction of an election

These new rules represented a “watered-down” version of a more comprehensive and highly controversial set of changes the NLRB had proposed in June 2011.

Finally, on Dec.23, 2011, the NLRB announced that it would accede to the request of the Washington D.C. District Court to postpone the effective date of a rule requiring employers to post a notice that advises employees of their rights under the National Labor Relations Act (NLRA). The posting requirement, which had been scheduled to go into effect on Jan. 31, was challenged in court on the grounds that the NLRB lacks the authority to issue or enforce such a requirement. The NLRB has now pushed back the effective date of the rule to April 30to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.”

While the new recess appointments are not expected to change the political bent of the already union-friendly NLRB, employers need to stay alert to the status of the posting requirement, and the new “quickie election” rules are expected to increase the number of organizing efforts and make it more difficult for employers to effectively respond to them.

Employers who are concerned about possible unionizing efforts should work with their labor counsel to determine what steps they should, and legally can, take to protect their interests.

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Andrew Tanick

Andy Tanick is a partner at national labor and employment firm Ford & Harrison LLP. Andy has over 20 years of experience handling employment cases...

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