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

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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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.

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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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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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. 

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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.

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