Following last week's deal to avoid the so-called "Nuclear Option," the Senate HELP Committee will hold hearings tomorrow on the newest nominees to the National Labor Relations Board. Assuming the nominees are approved by the committee in a Wednesday morning vote, a full complement of Board Members is likely to be confirmed by the full Senate as early as next month. So, what impact will this fully-seated Board have on recent developments -- and recent attempted developments -- in traditional labor law through the rest of this year? A new Board majority will have a similar philosophical disposition to its predecessors during the Obama administration, so we should expect endorsement of the rationale set forth in most 2011-2012 case decisions. We'll take a look here instead at expectations for some of the more notable Board actions called into question the past couple of years:
The Poster Rule: Barring unlikely Supreme Court action to reverse course, this Board initiative is not likely to go anywhere any time soon. Two federal Courts of Appeals have invalidated the National Labor Relations Board's August 2011 rule which would require private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act. The most recent ruling by the 4th Circuit, Chamber of Commerce et al. v. National Labor Relations Board et al., No. 12-1757 (4th Cir. June 14, 2013), found express limitations on the authority of the Board, proscribing enforcement of the rule. Accordingly, we do not expect further Board action absent further supportive action by the courts. (Federal contractors remain required to post a notice by Executive Order 13496).
"Quickie" Election Procedures: This Board is very likely, however, to revisit its effort to facilitate union organizing by drastically shortening the timeframe for union representation elections. The rules, which temporarily became effective April 30, 2012, would significantly limit pre-election adjudication and appeal of relevant legal issues; require expedited filings by employers; and, shorten the time between a direction of election and the actual voting. The Board issued guidelines and trained staff in the new procedures prior to the May 14, 2012 decision of the D.C. Circuit Court invalidating the rule on procedural grounds. There can be little doubt that, notwithstanding much public comment and controversy, the Board will return to its original proposals on this issue, and will attempt to implement these changes once again without concern over procedural and quorum defects. The Administration's most recent Unified Regulatory Agenda indicates the rule's final status is "To Be Determined".
Proliferation of Micro-Units: The 2011 Specialty Healthcare decision, which reversed decades of Board precedent and endorsed sub-unit organizing, was decided by four Board Members. Although Member Craig Becker, whose tenure was recently called into challenge by the Third Circuit, participated, there was still a valid quorum at the time of decision. Accordingly, we might expect this Board to continue to define the scope and extent to which the traditional "community of interest" test will be minimized as unions seek to organize smaller and/or cobbled-together groups of employees within workplaces.
Class Claim Waivers and Mandatory Arbitration (D.R. Horton): In early 2012, however, a three-Member panel, including Member Becker, ruled in D.R. Horton, inc., 357 NLRB No. 184 (2012), that the employer’s mandatory arbitration agreement violated the NLRA, in part, because it barred employees from bringing any class or collective actions. While the case remains on appeal before the Fifth Circuit, the recent decision of the Third Circuit calling Member Becker's recess appointment into question might invalidate the Board's decision outright. While the D.R. Horton decision remains current Board law, at least twenty-five reviewing federal and state courts have expressly rejected the decision and its rationale. There is little doubt that the incoming Board will share the philosophical views of the D.R. Horton Board on the issue of class waivers, but given its wholesale rejection elsewhere, it remains to be seen to what extent the new Board will seek to bolster or reiterate the holding.
Department of Labor's "Advice Exception": While the Board has no direct impact on the DOL's radical overhaul of the "advice exception" to the LMRDA "Persuader Regs," Secretary of Labor Tom Perez was also confirmed pursuant to last week's Senate deal. It is expected that the agency will now turn its renewed attention to its plan to implement these new rules before November 2013. These revised regulations would impose new and expansive reporting requirements on employers, their labor relations consultants and, very likely, their attorneys. If enacted, this new interpretation will represent an unprecedented intrusion into the lawyer-client relationship, and will place enhanced burdens on labor lawyers and the employers who seek their assistance and advice in response to union organizing activities. This impact on an employer's ability to receive legal advice come at a time when all of the foregoing will necessitate such advice most.