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NLRB Update

In the last several weeks, there have been major developments with regard to the National Labor Relations Board (NLRB).

1. New Union Election Rules

On December 21, 2011, the NLRB implemented new rules that could have a negative impact on union-free employers. The NLRB's two Democratic members formally adopted rules which significantly modify union representation case handling procedures. The new rules will take effect on April 30, 2012. It should be noted that the U.S. Chamber of Commerce has already filed a lawsuit challenging the implementation of these new rules.

If the rules take effect, unions will have a better chance of organizing workforces due to a more speedy election process. Also, employers will have a reduced ability to challenge who are eligible voters. The new rules would limit employers' ability to challenge a bargaining unit's appropriateness, and largely remove the Board from any involvement in a representation case until after an election is held. The new rules, combined with a recent Board decision, would practically eliminate an employer's ability to challenge a bargaining unit prior to an election.

The overall effect of these changes will be quicker elections, which will reduce the amount of time an employer has to communicate its position on unions to employees before they vote. Under the new rules, employees may be forced to vote without knowing what is at stake. Under the current rules, many elections involving contested legal issues are held six (6) weeks or more after a union election petition is filed. Until recently, there was a 38-day median time period between the filing and the election, with or without contested issues. Under the new rules, it will be possible for the Board to direct elections be held as soon as 10 to 20 days after a petition is filed, and employers would have no legal recourse.

Employers clearly will face an increased threat of unionization under the new rules. Because employers will have less time to educate their workforces once the new rules take effect in April 2012, communicating with employees and training supervisors are more important than ever to resist union organizing drives.

2. NLRB Poster Requirement Delayed

On December 23, 2011, the NLRB announced that it is postponing the effective date of its new requirement that virtually all employers post a notice to employees informing them of their rights under the National Labor Relations Act (NLRA), including the right to unionize. The effective date has been moved to April 30, 2012, which should be sufficient time for a pending lawsuit challenging the new poster requirement to be resolved by a court.

3. New NLRB Appointments

On January 4, 2012, President Obama announced the appointment of three (3) new members to the NLRB. He is doing so using "recess appointments", which are proper only when the U.S. Senate is not in session. Obama is appointing two Democrats, Sharon Block and Richard Griffin, and one Republican, Terence Flynn, to the Board.

Sharon Block is currently a Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. From 2006 to 2009, she was Senior Labor and Employment Counsel for the Senate Committee on Health, Education, Labor, and Pensions (HELP), where she worked for the late Senator Edward M. Kennedy. Richard Griffin is currently the General Counsel of the International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee. Terence Flynn is currently Chief Counsel to NLRB Board Member Brian Hayes.

U.S. Senator Mike Enzi, the ranking Republican member of the Senate HELP Committee, issued a statement criticizing the appointments shortly after the President announced them, noting that the Senate only had one day to consider the nominations of Block and Griffin before it adjourned on December 16, 2011, and that neither had gone through the vetting process. The legality of the appointments is in question, because there is a dispute about whether the Senate was actually in recess when the appointments were made. The U.S. Constitution requires that the Senate actually be in recess before the President may make recess appointments.

Whether the President's recess appointments are legitimate will be decided as Board decisions are appealed and litigated through the federal court system. Republicans kept the Congress in a pro forma session, gaveling in for a few minutes of official business every three days. That is a tactic that was used by Democrats during the Bush administration to block recess appointments. Additionally, President Obama's own Justice Department argued before the Supreme Court in 2010 that Congress was not in recess unless it was absent for more than three days.

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