Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

The NLRB responded to the decision of Judge Boasberg today.  In a press release, the NLRB announced that it will suspend implementation of the election rule.  Acting General Counsel Lafe Solomon has also withdrawn the memorandum issued to the regional offices at the end of last month explaining how to implement the rule.  Finally, Chairman Pearce (D) said that the NLRB was reviewing the court's decision and considering how to respond. 

Labor professionals with election petitions that were filed on or after April 30 should review the press release.  It contains information on how the NLRB will process these cases.

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Satisfying his promised timeline, Judge James E. Boasberg issued a decision (pdf) today finding the NLRB's election rule invalid.  Quoting Woody Allen that "eighty percent of life is showing up," Judge Boasberg found that the rule was invalid because one of the NLRB members did not participate in the vote to adopt it.  

When the final rule was approved last December, Member Hayes (R) did not vote on it.  Two other members, Chairman Pearce (D) and Member Becker (D), did so, and voted in favor of the rule.  While Member Hayes had participated in earlier votes on procedural issues related to the rule, and even made his opposition to the rule known, that was not enough in the court's view.  Rather, in a vote that was held electronically, Member Hayes had to do something in order to "show up" and constitute the three-member quorum required in the statute, and reaffirmed by the Supreme Court less than two years ago.

Accordingly, the judge ruled in favor of the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace.  The judge held that elections must continue to be conducted under the old rules.  The court noted, however, that nothing prevents the NLRB from holding a proper vote with a quorum present to adopt the rule again.  The court did not opine on any of the substantive arguments that were made against the election rule.

For the labor professional, the court's ruling may ultimately just delay the adoption of new election rules.  The NLRB now has a full five members, although there is controversy surrounding those appointments.  Another vote on the rule will present an opportunity to challenge the appointments in court.  Judge Boasberg's decision not to reach the substantive arguments against the rule means that any future litigation may still need to address those issues as well.

The court's decision, then, likely removes the immediate concern employers had with the adoption of the election rule.  It is not, however, an issue that employers can now set aside as resolved, but rather is yet another one that the prudent employer will want to continue to monitor.  The NLRB may announce its position on the decision soon.  If so, the NLRB's position will be covered in this blog.

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With the effective date of the NLRB's new election rules now less than 48 hours away, the NLRB's Acting General Counsel (AGC) continues his implementation efforts.  On Thursday, the AGC issued a memorandum (pdf) to the various regional offices of the NLRB containing additional information interpreting the new rule.  It also contains implementation instructions for the regional offices.

The memorandum is quite lengthy and detailed.  Perhaps the most interesting issue for the labor professional, however, is the guidance the memorandum contains on how regional offices should exercise the discretion the new rule gives them on limiting issues that can be litigated in the initial representation case hearing.  It was this litigation, among other items, that the NLRB majority believed to be unnecessary and slowing down the election process.  Thus, the NLRB's rule announced that "ordinarily" disputes over eligibility to vote or inclusion in the bargaining unit need not be resolved before the election is held. 

The AGC defined "ordinarily" by reference to the number of possible employees impacted by the eligibility or inclusion issue.  If 10% or more of the employees in the particular unit are impacted, the question could be addressed in the representation case hearing. 

The AGC also specifically commented on the issue of deciding which employees are supervisors.  The memorandum makes clear that these questions are subject to the rule.  Thus, if there are only a small number of employees who are claimed to be supervisors, the regional office has the discretion to refuse to decide those questions until the election has taken place.

In related developments, Chairman Pearce (D) issued a concurring opinion and Member Hayes (R) issued a dissenting opinion about the new rule yesterday. These opinions continue to debate the questions that have been presented to the court in the Chamber's lawsuit. 

In addition, the federal court handling the Chamber of Commerce's lawsuit challenging the rule denied a motion filed by the Chamber to prevent the rule from going into effect.  In his ruling earlier today, the judge stated that he would issue his opinion on the merits of the rule before May 15, 2012. 

In light of these developments, labor professionals should review the guidance from the AGC, or discuss it with their labor counsel, to determine how it will impact their operations.  The AGC's guidance and the NLRB's rule is very technical and detailed.  Even the FAQs the AGC issued are lengthy, although not quite as technical as the memorandum itself.  It is quite likely, therefore, that the guidance will effect employers in different ways.  In addition, labor professionals will want to watch closely for the court's ruling in the Chamber's lawsuit.  That ruling will be reported on this blog.

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Last week, AGC Lafe Solomon issued his annual summary of operations (pdf) for FY 2011. The summary reviews the various functions of the Acting General Counsel's office, which include conducting secret ballot union elections and investigating and prosecuting unfair labor practice charges against employers and unions.

Of the information reported, perhaps the most interesting given the NLRB's current regulatory efforts was the data on union representation elections.  The AGC reported that 91.7% of all union representation elections were completed within 56 days of filing the election petition.  Moreover, the median time taken to conduct the union election was 38 days from the filing of the petition.  Of the elections conducted, 89% were held pursuant to agreement of the parties.

Despite the speed with which regional offices conduct union elections, the NLRB continues to explore administrative rulemaking designed to accelerate the election cycle.  Moreover, in the face of evidence that the vast majority of elections are held pursuant to an agreement (i.e., without any litigation or disputes), the NLRB's rulemaking process targets the elimination of various procedures the NLRB says lead to litigation that slows down the election process.

The AGC also reported that total case intake for union election petitions was down in FY 2011 by 12.2%.  This statistic is particularly striking given the continuing weakness in union membership data.  The Bureau of Labor Statistics reported earlier this year that union membership stood at 11.8% of the total workforce, and only 6.9% of the private sector workforce.  Given these numbers, a decline in representation petitions (one way in which unions can increase membership) is unexpected. 

Other highlights from the report of interest to the labor professional include:

• Total intake of all types of cases during FY 2011 was down 5.9%.
• Of the 22,177 total unfair labor practice cases filed in FY 2011, the AGC found that additional proceedings were warranted in 37% of them.
• The number of unfair labor practice complaints (which required the employer or union to defend its conduct before an administrative law judge (ALJ)) issued in FY 2011 increased to 1,342 cases.
• The AGC won 87% of all the cases litigated before the NLRB or an ALJ.
• The amount of backpay, fees, dues or fines recovered on behalf of employees was down significantly from FY 2010 at a total of just over $60 million.  The figure in 2010 was over $85 million.

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The NLRB published a final rule on the election process late last year.  In doing so, however, the final rule left out a number of changes to the election process that were originally proposed in June 2011.  For example, there were proposed changes to the requirements to provide lists of employee names and contact information after an election petition is filed, the timing of providing that list, and other issues.  As previously explained, the NLRB announced last month that it would keep these additional changes to the election rules under consideration for possible future action.

In an interview published by the Associated Press yesterday, NLRB Chairman Pearce (D) confirmed his intention to continue pushing forward with these additional regulatory proposals.  "We keep our eye on the prize," the AP quotes Chairman Pearce as saying. "Our goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayers."  Chairman Pearce announced his hope that the NLRB will propose the rules "soon," according to the AP.

For the labor professional, this most recent development confirms that there is likely more rulemaking yet to come on the so-called "ambush election" or "quickie election" rule.  This announcement does not, however, alter the currently announced effective date for the final rule published last month on the election process.  It is still scheduled to become effective on April 30, 2012.

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By Nelson Cary and Micah Dawson

Earlier today, the NLRB formally published their new election rules in the Federal Register.  Chairman Pearce (D) and Member Becker (D), whose term ends next week, voted in support of the new rule. Member Hayes (R) withheld his vote. Member Hayes can vote against finalizing the rule and publish a statement of dissent any time before the rule takes effect on April 30, 2012.

As expected, the new rule makes significant changes to union election procedures, including:

• Empowering the hearing officer to limit evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
• Eliminating the automatic right to file briefs with the regional director after the initial hearing;
• Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
• Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
• Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
• Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

The rule, which has increasingly been referred to as the “ambush election” rule by those opposed to it, significantly limits employers’ legal right to object to the petitioned-for unit prior to a union election.  By shortening the amount of time between petition and election, it also curtails employers' ability to communicate with workers during the union election process.  With less ability to communicate, the rule limits the time during which an employee is certain to hear both sides of the story:  both the case for and the case against union representation.   

Even before the NLRB announced that it would publish this final rule, the U.S. Chamber of Commerce sought to nullify it.  On December 20, 2011, the Chamber filed a federal lawsuit challenging the new rule. The lawsuit attacks the validity of the new rule, stating that it violates Board procedure and denies employers' free speech rights. In addition to asking the court to vacate the rule, the Chamber’s lawsuit (pdf) seeks a preliminary injunction barring the rule from being enforced.

For the labor professional, the final rule is a major development.  Employers that are currently non-union should carefully consider the implications of the rule in light of their individualized circumstances.  Those employers may want to revisit their strategies given this development. 

The Chamber's lawsuit adds an additional level of complexity for the labor professional.  After business groups filed court challenges against the NLRB's notice posting rule, the NLRB delayed the effective date of that rule.  It is uncertain whether a similar delay will be announced here, given that the NLRB is at risk of losing one of its three members, and thus being unable to act.

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The NLRB announced today that it has formally adopted the revisions to the election rules that were originally proposed earlier this year.  The official notice will be published in the Federal Register tomorrow.  The rule, which some have referred to as the "quickie" or "ambush" election rule, will become effective on April 30, 2012.  Stay tuned to vorysonlabor.com for additional details about the final rule.

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The NLRB headed into a public vote today over a proposed rule on election procedures summarized yesterday on this blog.  It did so without assurances that one of its members, Brian Hayes (R), would be present. While tensions were high, Member Hayes did attend the meeting and the NLRB voted along party lines, 2-1, to move forward with the slimmed down, but still controversial, election rule proposal. As the lone dissent, Member Hayes again made it clear that he opposed the short time frame for elections under the proposal. Despite that opposition, the final language of the rule will now be drafted for another NLRB vote before it goes into effect. 

Although there was information suggesting that Member Hayes was seriously considering resigning in an effort to eliminate the NLRB’s power to move forward on the proposal, he has apparently decided against resignation. Member Hayes explained at the meeting that “it is not my nature to be obstructionist.” Further, he believed that “resignation would cause the very same harm and collateral damage to the reputation of this agency” as the rule changes the majority voted to advance.

With Hayes staying put, labor professionals should stay alert for the final language of the rule, as it is certain to have a impact on employer policies.  Nor should labor professionals expect any legislative change from Congress that would trump the administrative rule.  Although the U.S. House voted today to approve legislation that would do so, the prospects of that legislation appear dim in the Senate.

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