Battle Over Notice Posting Rule Ends: NLRB Announces Decision Not to Appeal

The battle over the NLRB's notice posting rule appears to have concluded.  Last year, two different federal courts of appeals determined that the NLRB's rule was unlawful.  The D.C. Circuit found that the rule violated an employer's freedom of speech, which the NLRA guarantees.  The Fourth Circuit found that the NLRB didn't have the statutory authority in the NLRA to issue the rule.  After it allowed the deadline for filing a petition for certiorari to the U.S. Supreme Court pass without filing anything, the NLRB announced Monday that it was not going to appeal these decisions.

This development is welcome news for employers.  There is no suggestion that the NLRB will attempt another rulemaking effort.  Rather, the NLRB suggests that its efforts at notifying employees about their rights under the NLRA will continue through the agency's website and mobile apps.  Thus, the conclusion of the notice posting rule is unlike the union election rule, which may yet be the focus of further rulemaking efforts despite the NLRB's decision to abandon its appeal of adverse rulings associated with that rule.  The text of the email from the NLRB announcing this development is quoted in full in the extended entry. 

Office of Public Affairs
202-273-1991
publicinfo@nlrb.gov
www.nlrb.gov

The NLRB's Notice Posting Rule

January 6, 2014

The National Labor Relations Board (NLRB) has decided not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post a notice of employee rights in the workplace.

The NLRB remains committed to ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.

The U.S. Court of Appeals for the District of Columbia Circuit stated: “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” The workplace poster remains available on the NLRB website. It may be viewed, displayed and disseminated voluntarily. In addition, the NLRB has established a free NLRB mobile app for iPhone and Android users to provide the public with information about the National Labor Relations Act.

Under the National Labor Relations Act, most private sector employees have the right to:

  • Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Form, join or assist a union.
  • Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  • Choose not to do any of these activities, including joining or remaining a member of a union.

Workers who believe their rights have been violated should contact the NLRB promptly, as there is a six-month statute of limitation. Inquiries regarding possible violations can be made without an employer, union or anyone else being informed of the inquiry. Charges may be filed by any person and need not be filed by the employee directly affected by the violation. As examples, the NLRB may order (1) an employer to rehire a worker fired in violation of the law and to pay lost wages and benefits; (2) may order a union to adhere to its duty of fair representation; and (3) may order an employer or union to otherwise cease violating the law. Employees should seek assistance from the nearest regional NLRB office, which can be found on the Agency’s website: www.nlrb.gov.

The NLRB can also be contacted by calling toll-free: 1-866-667-NLRB (6572) or (TTY) 1-866-315-NLRB (6572) for the hearing impaired.

NLRB Abandons its Appeal of Union Election Rule Decision, May Re-issue Challenged Rule

By Nelson Cary and Michael Shoenfelt

Earlier this week, the NLRB voluntarily dismissed its appeal of a 2012 decision invalidating a rule designed to “streamline” union elections.

Commonly known as the “ambush” or “quickie” election rule, the rule would have significantly decreased the amount of time between the filing of a petition to unionize with the NLRB and the employee’s secret ballot vote. It also limited the scope of the pre-election hearing and reduced employers’ ability to file post-hearing briefs and appeals.

ballot boxA federal district court initially invalidated the rule because the NLRB lacked a quorum when it issued the rule. In December 2011, when the NLRB voted to adopt the rule, the NLRB had only three of its five seats filled. Only two of those three members took part in the electronic vote on the rule. While the two votes would have been enough to pass the rule, the district court held that the absence of the third member was fatal for purposes of establishing quorum. 

The NLRB appealed that decision to the court of appeals. The appeals court had placed the case on hold in light of the dispute over the NLRB recess appointees. The NLRB got out of that waiting game by voluntarily dismissing its appeal Monday.

The NLRB's decision to drop the appeal, however, is not a victory for employers.  Instead, it merely sets the stage for the next act in this drama.  The NLRB has five members now for the first time in more than a decade, and is expected to re-issue the rule, or a similar rule.  Labor professionals should keep an eye on that process, as the NLRB is free to act on its previously-expressed intent to implement changes that go even further in “streamlining” elections that the rule that was the center of this dispute.

Senate Confirms NLRB Appointments

The U.S. Senate voted yesterday to confirm all of President Obama's nominees to the NLRB.  The Democratic nominees were confirmed on a roll call vote, while the Republican nominees were confirmed on a voice vote.  Thus, for the first time in nearly a decade, the NLRB will have five full members, all confirmed by the Senate.

The recently confirmed nominees to the NLRB are:

  • Chairman Mark Pearce (D).  Chairman Pearce has served on the NLRB since March 2010.
  • Member Kent Hirozawa (D).  President Obama nominated Member Hirozawa recently as a result of the compromise that allowed yesterday's vote to proceed.  Member Hirozawa most recently served as chief counsel to Chairman Pearce.
  • Member Nancy Jean Schiffer (D).  Member Schiffer was President Obama's other recent nomination.  Member Schiffer retired last year from her position as associate general counsel for the AFL-CIO.
  • Member Philip Miscimarra (R).  Member Miscimarra was nominated earlier this year, and most recently was a partner at Morgan, Lewis, & Bockius where he represented management in labor law issues.
  • Member Harry Johnson III (R).  Member Johnson was nominated earlier this year, and most recently was a partner at Arent Fox where he represented management in labor law issues.

For those in Ohio who are interested in how their Senators voted in the roll call votes on the Democratic nominees, Senator Brown (D) voted in favor of all the nominees.  Senator Portman (R) voted in favor of Chairman Pearce, but against Members Hirozawa and Schiffer.

For labor professionals, the vote removes the air of uncertainty that had plagued NLRB actions for some time.  One effort that may particularly benefit from the confirmation of five full members is the rulemaking activity on the union election process, which the NLRB had previously left unfinished.

Court of Appeals Finds Notice Posting Rule Invalid; Violates Employer Speech Rights

The federal courts have dealt the NLRB’s notice posting rule another setback. In a ruling Tuesday, the court of appeals in Washington, D.C., the same court that earlier this year held President Obama’s recess appointments to the NLRB unconstitutional, vacated the NLRB’s notice posting rule. The court concluded that the rule violated an employer’s right to freedom of speech.

For those readers who may have forgotten what the controversy is about, a brief refresher. In 2011, just before former Chairman Liebman’s (D) term was to expire, the NLRB approved, by a vote of 3-1, a rule that required employers covered by the NLRA to post a notice in the workplace advising employees of various rights. Never before in the history of the NLRB has such a notice been required, and no provision of the NLRA explicitly requires a notice posting. 

 

The final rule enforced the notice posting requirement using three different remedies. First, it declared that an employer’s failure to post the notice would be an unfair labor practice. Second, it provided that the failure to post the notice could be used as evidence of an employer’s anti-union motivation. Finally, it purported to suspend the running of the applicable statute of limitations for filing an unfair labor practice charge for the period of time during which the notice was not posted. 

 

District courts in Washington, D.C. and South Carolina came to differing conclusions on the validity of the rule.

 

The court of appeals, in a unanimous 3-0 decision (pdf), found the NLRB’s notice posting rule violated an employer’s right to freedom of speech. The NLRA contains a provision, known as Section 8(c), that guarantees the right to express and disseminate views, arguments and opinions about unions so long as such expression contains no threat of reprisal or force, or promise of any benefit.

 

Relying upon Supreme Court precedent interpreting the First Amendment, the court held that the first two remedies in the NLRB’s regulation violated Section 8(c). Although this section “precludes the [NLRB] from finding noncoercive speech to be an unfair labor practice, or evidence of an unfair labor practice, the [NLRB’s] rule does both.” The notice posting rule required the employer to speak on the issue of unions, and purported to control the content of that message, under the threat of an unfair labor practice charge, in contravention of the right to freedom of speech contained in the NLRA.

 

The court found that the third remedy for failing to post the notice was also invalid. Tolling of the statute of limitations was not permissible because the NLRB failed to demonstrate that Congress intended such an exception when it adopted the NLRA over 60 years ago. Because all three enforcement tools were invalid, and because the notice requirement could not be separated from these remedies, the entire notice requirement was struck down.

 

Two of the three judges on the court would have gone even further. In a concurring opinion, these judges explained that the rule was invalid because the NLRB had no statutory authority to issue it.

 

In an interesting side note, the court also held that the recess appointment of former Member Becker (D), which has since expired, was not permissible under Noel Canning. But, there were still three, Senate-confirmed appointees who voted on the final rule, a majority of those members voted in favor, and all three of them were serving under valid appointments at the time the final rule was filed. Thus, the regulation did not fail for lack of a valid quorum on the NLRB.

 

For the labor professional, three significant items should be noted:

  • Since the litigation surrounding the rule began, the NLRB has declined to enforce the rule pending conclusion of that litigation. Given the court’s holding that the rule was “vacated,” it would be quite surprising if this position changed. At the time of this post, however, the NLRB has not formally announced its reaction to the ruling.
  • No court has sustained all parts of the NLRB’s rule. The rule has either been invalidated in its entirety, as the Washington, D.C. court of appeals and the district court in South Carolina did, or some of the enforcement provisions have been invalidated, like the district court in Washington, D.C. did. Thus, the rule doesn’t have a good track record so far.
  • The decision in the South Carolina case is still on appeal to a different court of appeals. Assuming the NLRB continues to fight for its rule, this ruling should come later this year.  If that ruling comes out differently, the likelihood increases that the Supreme Court will ultimately decide this issue.

 

NLRB Responds to Court's Decision on Election Rule

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.

Federal Judge Invalidates NLRB Election Rule

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.

AGC Issues Guidance on New Election Rules; Court Denies Motion to Stay

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.

Federal Appeals Court Enjoins Notice Posting Rule; NLRB Responds

The requirement to post a notice of employee rights under the NLRA that was to have taken effect on April 30, 2012 has once again been delayed.  Today, the federal court of appeals in Washington, D.C. granted (pdf) a request for an order enjoining the NLRB's notice posting rule pending an appeal of a lower court decision finding that the rule was lawful.  The court of appeals' order followed on the heels of, and specifically referenced, a decision in South Carolina finding that the rule was unlawful.  The court of appeals cited, among other things, the uncertainty regarding the enforceability of the posting requirement as one of the reasons supporting its decision to grant the injunction.

Shortly after the court of appeals ruling, NLRB Chairman Pearce (D) issued a statement regarding enforcement of the notice posting rule.  Acknowledging the court's ruling in Washington, D.C., and citing the "strong interest in the uniform implementation and administration of agency rules," Chairman Pearce declared that the NLRB's regional offices will not implement the rule.  The delay the NLRB announced will last until "resolution of the issues before the court."  At the same time, Chairman Pearce also announced the NLRB's intent to appeal the South Carolina decision, as well as to take its own appeal of the portion of the lower court's ruling in Washington, D.C. that struck down two of the three enforcement mechanisms in the rule.

These developments are a welcome response to the uncertainties created by the conflicting court rulings.  Labor professionals can wait for a court decision on the legality of the NLRB's rule, and should expect to hear more later this year.  The court of appeals announced an expedited briefing schedule and set oral argument for September. 

NLRB Notice Posting Rule Unlawful

Last year, the U.S. Chamber of Commerce challenged the legality of the NLRB's notice posting rule in federal court in South Carolina.  Yesterday, Judge David C. Norton found (pdf) that the NLRB did not have the authority to issue the notice posting rule and that it was, therefore, unlawful under the Administrative Procedure Act. 

Judge Norton reasoned that the notice posting rule was not "necessary to carry out" the NLRA because there is no provision in the NLRA itself that requires any type of notice posting.  He also found that the overall structure of the NLRA contemplates that the NLRB will serve a reactive function, responding to charges or petitions filed by others.  The notice requirement constituted a proactive attempt to dictate employer conduct prior to the filing of any such charge or petition.  Finally, Judge Norton found that Congress did not intend to give the NLRB the power to require a notice posting.  The NLRA, unlike other labor legislation enacted around the same time and since, does not contain a provision requiring employers to post a notice of the rights afforded under the statute. 

With Judge Norton's ruling, labor professionals are faced with conflicting rulings from two federal judges.  The  District of Columbia decision is currently on appeal, and the court of appeals has been asked to stay the ruling of the district court judge in that case pending appeal.  The NLRB will likely appeal the South Carolina decision as well.  Thus, litigation over the rule will continue.

Whether the NLRB, in light of the South Carolina decision and the continuing litigation, will voluntarily delay the effective date of the notice posting rule is yet to be seen.  To be sure, the NLRB has already delayed the effective date on prior occasions even before the District of Columbia and South Carolina decisions were issued.  If the NLRB does so, or as any additional developments occur, this blog will cover them.

NLRB Election Process Rulemaking: It's Not Over Until It's Over

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.

Notice Posting Rule Delayed Again

The NLRB announced today that it is delaying the effective date of its notice posting rule.  This is the second delay the NLRB has announced.  This time, however, the NLRB stated that the delay was at the request of the federal judge in Washington, D.C. who will decide two of the three cases that business groups and others filed challenging the rule.  At a court hearing earlier this week, the judge asked the NLRB to delay the effective date of the rule.  The new effective date for posting the required notice is April 30, 2012.

Details of NLRB Election Rule Published; Chamber Files Lawsuit

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.

NLRB Adopts New Election Rules Adopted

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.

Hayes Stays: NLRB Moves Forward with Election Rule

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.

NLRB Chairman Pearce Announces Content of Election Rule Proposal

As reported on this blog last week, the NLRB will meet tomorrow to consider a resolution on the rule it proposed in June 2011.  Today, Chairman Pearce (D) made public the resolution (pdf) that will be voted on at tomorrow's meeting.  In doing so, the Chairman has disclosed what was left unanswered in the announcement of the meeting last week:  what will the final rulemaking contain?  According to the resolution, and the NLRB's accompanying explanation, the resolution would commit the NLRB to moving forward on six changes to the NLRB's rules:

  • Limiting 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.

These six changes are in line with the NLRB majority's desire to "streamline" the NLRB's election petition process. The result is to speed up the time between the filing of an election petition and the holding of a secret ballot election. This has caused many to refer to the rulemaking as the NLRB's "quickie election" rule.

As the effort to finalize these regulations moved forward, Member Hayes (R) wrote a letter to Congressman John Kline, Chairman of the U.S. House Committee on Education and the Workforce, in response to a request by Kline for information from the NLRB. Hayes was critical of the rulemaking process in this letter. When Hayes' letter became public, the Chairman responded with a scathing letter to Hayes, rebutting the statements contained in Hayes' letter. A good summary of these unusual letters can be found here.

The originally proposed rule contained a number of additional changes that the NLRB has apparently decided it will not pursue at this time.  For example, the NLRB's resolution does not address the original proposal to:

  • Require a position statement before the initial hearing summarizing all of the parties' issues;
  • Require that the initial hearing be held within seven days of the date the petition is filed;
  • Require that the eligible voter list be produced within two days, rather than the seven currently required; and
  • Require that the eligible voter list contain employee e-mails and phone numbers, in addition to addresses.

It appears that the NLRB will, however, continue to deliberate over the other portions of the proposed rule.  This leaves open the possibility that the other changes proposed in June could yet find their way into the NLRB's regulations. 

For the labor professional, the NLRB's resolution reveals the agency's desire to get at least some final rule published prior to the end of the year.  Indeed, the NLRB's explanation specifically references the "possibility that the Board will lose a quorum at the end of the current congressional session. . . ."  By slimming down the proposal, the NLRB can move the proposal to a final rule more quickly while still leaving on the table the other changes proposed. 

There is a wild card still in play that is important to note.  The Hayes/Pearce letters reveal that Hayes has threatened to resign.  If he did so, it would take the NLRB down to only two members.  This would likely deprive the NLRB of the necessary quorum to adopt the final rules.

Finally, the NLRB's announcements today do not reveal the actual language of the amendments.  They simply summarize which portions of the regulations will be changed.  Thus, the full impact of the proposed changes is difficult to assess.  It is clear, however, that for those on the management side, the changes will not be welcome.

NLRB to Vote on Election Process Rule

The NLRB announced yesterday that it will hold a public meeting on November 30, 2011.  At the meeting, the three remaining NLRB members will discuss and vote on the so-called "quickie election" rule that the NLRB proposed in June 2011.  As previously discussed on this blog, the changes in the proposed rule range from permitting electronic filing of certain documents (hardly the most controversial measure in the proposal) to limitations on a party's right to litigate certain voter eligibility and other issues at the outset of the representation election process.  

According to the NLRB's announcement, Chairman Pearce will propose issuing a final rule that is limited to "several provisions designed to reduce unnecessary litigation."  Which specific provisions in the proposed rule those might be are unclear from the announcement. The limitations on so-called "unnecessary" litigation, however, are the more controversial proposals in the rule.

The NLRB's action comes the day after the U.S. House of Representatives took action to move a bill designed to forestall parts of the proposed rule to the full House for a vote.  H.R. 3094 (pdf), entitled the "Workforce Democracy and Fairness Act," cleared the House Rules Committee on November 17.  That bill would amend the NLRA to provide, among other things, that there must be a minimum of 35 days between the filing of an election petition and the holding of an election.

Although the NLRB's announcement does not reference H.R. 3094, it does acknowledge the possible loss of the NLRB's third member at the end of the year.  If the NLRB drops to two members (Member Becker's recess appointment expires at the end of this year), it will be unable to issue decisions or new regulations, as the Supreme Court ruled in 2010.

Labor professionals wishing to attend the NLRB's meeting must contact the agency via e-mail.  Those attending, however, will not be permitted to participate.  The hearing will also be webcast.  Additional information about the NLRB's action can be found in its announcement.

UPDATE: NLRB Delays Notice Posting Compliance Deadline

The NLRB announced today a delay in the effective date of its recently published final rule requiring the posting of a notice of employee rights under the NLRA.  Employers subject to the NLRB's jurisdiction are now expected to have the notice posted by January 31, 2012.  The rule was previously set to take effect on November 14, 2011. 

According to the NLRB's press release, the delayed effective date of the rule was "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses."  Of course, as readers of this blog know, there are also pending three federal court lawsuits challenging the NLRB's rule.  Those suits seek to invalidate the rule in its entirety.  The NLRB's press release doesn't reference these suits.

NLRB Final Rule Requires Employers to Post Notice of NLRA Rights

Today, the NRLB officially published a Final Rule that requires private-sector employers, both union and non-union, to post a notice in their workplaces notifying employees of their rights under the NLRA. Pursuant to the new rule, employers subject to the NLRA must “post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information containing basic enforcement procedures . . . .” 

The notice (pages 185-190 of the Final Rule (pdf)) contains a list of employee rights under the NLRA.  A few examples of the rights that are listed include:

  • The right to act together to improve wages and working conditions;
  • The right to discuss wages and benefits and other terms and conditions of employment with other employees;
  • The right to form, join and assist a union;
  • The right to bargain collectively and to discuss conditions of employment and union organizing with a union and with coworkers;
  • The right to strike and picket, depending on the purpose or means; and
  • The right to choose not to do any of these activities. 

The notice also provides examples of unlawful conduct under the NLRA and tells employees how to contact the NLRB with questions or complaints.

Like other workplace notices, the employee rights notice must be posted in a conspicuous location where it will be readily seen by employees. If an employer customarily posts notices to employees concerning personnel rules or policies on an internet or intranet site, then the employer must also post the notice electronically. However, employers are not required to distribute the notice via email, voice mail, text messaging or other related electronic communications, even if they customarily communicate with their employees in that manner. 

If 20% or more of the workforce is not proficient in English, and speaks a language other than English, the notice must be posted in the language the employees speak.  The NLRB will provide translated versions of the notice.

Employers must post the notice by November 14, 2011.  According to the Final Rule, failure to post the notice may result in the following consequences:

  • An unfair labor practice under the NLRA;
  • An extension of the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer; and
  • Use of the fact of non-posting as evidence of unlawful motive in an unfair labor practice charge involving other alleged violations of the NLRA, provided that the employer “knowingly and willfully” failed to post the notice. 

For labor professionals, the NLRB's rule is another compliance issue that will need to be addressed and monitored.  The NLRB has announced that it will have copies of the notice available for no cost beginning on November 1.  Employers may also download copies of the notice from the NLRB's website.  Small businesses may or may not be subject to this requirement and should consult a labor attorney on that question, as should any other employer with questions about the NLRB's action.

NLRB Issues Final Rule on Notice Posting

This morning, the NLRB announced that it would publish its final rule requiring employers to post a notice of employee rights under the NLRA.  The notice posting is a new requirement.  Employers currently have no obligation to post such a notice.

The final rule will be published in the Federal Register tomorrow.  It will take effect 75 days later.  This action comes on the eve of the expiration of Chairman Liebman's term.  Her term expires on August 27, 2011.

As readers of this blog know, the NLRB published the proposed rule last December.  Additional detail on the final rule will be available at vorysonlabor.com soon.

NLRB Announces Open Meeting on Proposed Rulemaking on Election Process

The NLRB has announced that it will hold an open meeting on July 18, 2011 to consider input from interested parties about its recently proposed rule on the election process.  The meeting will take place at the NLRB's headquarters in Washington, D.C. and will begin at 9 a.m.  Those interested in attending, or making a presentation, must notify NLRB staff no later than 4 p.m. this Friday, July 1, 2011.  Labor professionals seeking additional information about the meeting can locate details in the Federal Register or on the NLRB's website.

Proposed Rule Hastens Union Election Process

It is only Wednesday, and yet the week has still been a tough one for employers concerned about union-related issues. On Monday, the U.S. Department of Labor proposed a new interpretation regarding persuader activity. Then yesterday, the NLRB announced a proposed rule that will significantly change, and likely accelerate, the union election process. The official publication of the NLRB’s proposal will take place today.

The Notice of Proposed Rulemaking (“Notice”) maintains that “the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation.” Through the proposed amendments, the NLRB intends to fix perceived flaws in the NLRB’s current election procedures that, according to Chairman Liebman (D), build in unnecessary delays, encourage wasteful litigation, reflect old-fashioned communication technologies, and allow haphazard case-processing. 

Member Hayes (R) vigorously dissented (pdf) to the issuance of the Notice. Characterizing the proposed amendments as championing “a belief that employers should have little or no involvement in the resolution of questions concerning representation,” Hayes warned that the proposed changes would amount to a union-friendly “quickie election” option in which elections would be held in 10 to 21 days after the petition’s filing. 

The Notice presently contains no specific deadline by which a union election must be held following the filing of an election petition. Yet, any shortened timeframe between a petition and an election may stymie employer efforts to convey the company’s perspective to employees. In contrast, the union has likely communicated with employees for some period of time before an election petition is even filed. This truncated employer messaging timeframe concerned Hayes, who wrote, “[m]ake no mistake, the principal purpose for this radical manipulation of our election process is to minimize, or rather, to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.” 

According to an NLRB fact sheet, if adopted the proposed amendments would also:

 

·         Standardize and accelerate timeframes for parties to resolve or litigate issues before and after elections.

·         Require parties to identify issues and describe evidence soon after an election petition is filed, or forfeit the right to raise those issues later.

·         Defer litigation of most voter eligibility issues until after the election.

·         Require employers to provide a final voter list in electronic form much earlier than under current law, and require that list to include voters’ telephone numbers and email addresses when available.

·         Consolidate all election-related appeals to the NLRB into a single post-election appeals process.

·         Make NLRB review of post-election decisions discretionary rather than mandatory.

 

The NLRB’s proposed process changes could significantly impact an employer’s approach to a union election. Some of the changes and their effect, like the new eligibility list requirements, are straightforward. The impact of other changes may not be as immediately obvious. For example, deferring certain voter eligibility questions until after an election could introduce substantial uncertainty during the campaign process.

Finally, although the proposed regulations do not implement the precise types of changes EFCA would have brought, they clearly are designed to speed up the election process. Like EFCA’s card check, a quicker election process favors unions over employers. Thus, labor professionals will want to carefully review all of the proposed changes to determine how each may impact their organization’s own, unique circumstances. If an employer or industry/trade association wants to provide comments on the rules, they may do so at www.regulations.gov for the next 60 days.

NLRB Proposed Rule Draws 6500 Comments, Controversy

By Nelson Cary and Samantha Stilp

The comment period for the National Labor Relations Board proposed rule requiring employers to post notice informing workers of their right to unionize officially ended last week.  Nearly 6,500 comments reveal strong opposition to the rule from all types of employers.

Those filing comments opposing the rule focused on three main issues. First, the comments questioned the NLRB’s authority to make such a rule. Second, commenters expressed concern that the text of the proposed notice was one-sided, containing information about rights of employees to join unions, but omitting information regarding employees’ rights to decertify a union, object to certain union dues/fees, and seek relief against unions for lack of fair representation. Finally, commenters criticized the potential penalties for violation of the rule.  All of the comments to the proposed rule are available online.

In addition to these general concerns, retailers and manufacturers, as well as organizations representing each, expressed frustration with the electronic notice requirement. Comments concerning the electronic notice requirement urged that such notice would place significant burdens on employers and create a “troubling precedent” of using employer email systems to provide union information to employees.

If promulgated, the notice requirement rule would be problematic for employers on many grounds. For now, employers are encouraged to be watchful for the NLRB’s next step with regard to the proposed rule. The proactive labor professional may also want to begin planning for the possibility that the rule will be adopted, thus requiring the posting of the proposed notice.  It is uncertain when the NLRB may take additional action on the proposed rule. 

NLRB Proposes Rule Requiring Employers to Post Notice on Unionization

The National Labor Relations Board (“NLRB”) has proposed a rule that would require employers to post notices informing workers of their right to unionize. The NLRB rarely uses its rulemaking authority, and the proposed rule is the first time the NLRB has invoked that authority since 2004. 

Under the proposed rule, all employers subject to the National Labor Relations Act (“NLRA”) would have to post an 11-by-17 inch poster educating employees of their rights under the NLRA. The notice would have to be posted where the employer posts other workplace notices, such as safety, wage and hour, and anti-discrimination posters. Employers that primarily communicate with employees via email or other electronic means would have to also post the notice electronically. 

If an employer failed to post the notice, it could be penalized.  The NLRB would treat such a failure as an unfair labor practice.  It would also suspend the statute of limitations that would otherwise be applicable and could use the failure to post the notice in the context of other unfair labor practice charges unrelated to the notice posting issue.

The proposed rule represents a notable departure from the NLRB’s typical practice of requiring employers to post notices only as a remedy for noncompliance with the NLRA or a few days in advance of an NLRB-conducted election. According to the explanation accompanying the NLRB’s proposal, the NLRB’s broad enforcement of a posting requirement is rooted in its belief that employees are “unaware of their rights under the statute.” Indeed, the NLRB’s press release says that the purpose of the proposed rule is to “increase knowledge of the NLRA among employees, to better enable their exercise of rights under the statute, and to promote statutory compliance by employers and unions.”

To that end, the proposed notice will state that employees have the right to:

  • act together to improve wages and other terms and conditions;
  • form, join, or assist unions;
  • bargain with their employer;
  • discuss union organizing with co-workers or a union;
  • raise work-related complaints with their employer, a governmental agency, or a union;
  • strike and picket; and
  • choose not to engage in any of these activities. 

The notice would also provide examples of unlawful employer and union conduct, as well as instruct employees how to contact the NLRB with questions or complaints. The complete text of the proposed employee rights notice and the proposed penalties for failing to post the notice are set forth in the Proposed Rule.  There is a 60 day period for public comment on the proposed rules.

For the labor professional, the NLRB's action is really quite remarkable.   It wants to require otherwise compliant employers to post notices informing employees of their right to unionize. This also suggests that future NLRB rulemakings are on the horizon. Indeed, the fact that law professor Charles Morris originally proposed the rule to the NLRB in a 1993 petition further supports this possibility. Readers of this blog may recall that Morris has also petitioned the NLRB asking that it issue an administrative rule requiring employers to bargain with unions that do not represent a majority of an employer’s employees.

It is unclear what awaits labor professionals if Professor Morris is influencing NLRB policy, but if the NLRB's proposal is any sign, employers should beware and remain watchful of any additional rulemaking activity.  Those employers and other interested parties who wish to comment on the regulations should note the applicable deadline for receipt of those comments.

Minority Unions: A Next Step for the NLRB?

The default rule under current law is that a union needs the support of a majority of the employees it represents. If it has that support, the employer will be required to recognize and bargain with it. If it doesn't have that support, no obligation typically exists.

As an administrative agency, the NLRB can set rules in two ways. It can rule on specific cases that come before it, thereby setting out rules of law that apply in similar circumstances. It can also engage in rule-making, issuing rules of general application. The NLRB has traditionally relied heavily on deciding cases, and has only rarely issued administrative rules.

In 2007, however, a group of unions filed a petition with the NLRB asking that it issue the following administrative rule:
Pursuant to Sections 7, 8(a)(1), and 8(a)(5) of the [National Labor Relations] Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for any other employees.

Another group of unions filed a similar petition in 2008. Both petitions followed a 2006 memorandum from the NLRB's General Counsel (the "prosecutor" of violations under federal labor law) that determined that a union needed to show majority support before there was any obligation to bargain with it.

If the NLRB were to issue a rule like the one proposed, it would fundamentally alter the accepted approach to union organizing. If a small group of employees wanted to bargain with the employer, the employer would have to bargain with them, no matter how few employees there were.

Fortunately for most employers, the NLRB has not to date taken any action on this issue. Indeed, the NLRB only had two members for a 27-month period, and so couldn't take any action on administrative rulemaking. That barrier to action went away earlier this year, with recess appointments of two new members. With four of five spots on the Board now filled, it could vote to issue a notice of proposed rulemaking in response to the unions' petitions.

In fact, just recently, a group of professors, led by Charles Morris who has written extensively on the issue of minority unions, filed an unsolicited amicus brief with the NLRB. The brief, which supports the rulemaking petition, asks the NLRB to proceed with rulemaking, and lays out an extensive legal argument in support of the legality of the proposed rule.

Labor professionals should monitor NLRB actions in this area, particularly looking for the notice of proposed rulemaking on this subject. If one is issued, certain employers or employer groups may want to submit comments on the proposed rule. In the meantime, labor professionals should consider how the issue of minority union bargaining could affect the workplaces for which they are responsible.