Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

7th Circuit Hears Argument that IN's Right-to-Work Law Constitutional: Ben James of Law360 ($$) writes that last Friday, Indiana's Attorney General told the Seventh Circuit Court of Appeals that Indiana's right-to-work law is constitutionally sound and is not preempted by federal law. Indiana's right-to-work law, passed in February of 2012, prohibits a union from requiring members to pay dues or join the union as a condition of employment.

“Indiana’s right-to-work statute fits squarely within the permitted parameters of the federal labor law allowing state regulation of forced union membership and union security agreements, and therefore, the district court correctly dismissed the preemption claims in this case,” the brief said.

The International Union of Operating Engineers (IUOE) had filed suit around the time the law was passed in an attempt to invalidate the newly-passed legislation. A ruling is expected in the next couple of months. We will certainly keep you posted.

New Jersey AFL-CIO Chapter Launches Super PAC: Jenna Portnoy of the New Jersey Star Ledger reports that the New Jersey chapter of the AFL-CIO has filed the necessary paperwork in order to form a Super PAC. The Super PAC, to be known as NJ Workers' Voices, is expected to lean left and focus on current employee-side labor issues.

The group will provide "grassroots communications support for candidates and issues that we feel are in line with the interests of the state's workers," [a spokeswoman for the group] said.

The first major testing point for the newly-formed Super PAC will be the coming 2014 midterm elections. While NJ Workers' Voices has not yet begun to endorse candidates, expect the Super PAC to begin backing New Jersey Democrats in the near future.

Chicago Teachers' Union re-elects Union Chief: Valerie Strauss of the Washington Post writes that the Chicago Teachers' Union (CTU) has re-elected Union Chief Karen Lewis to another three-year term of office. Lewis won over 80% of the vote and soundly beat back a challenge from her previous competitor. Interestingly, Lewis will have little time to celebrate her victory, as CTU will kick of three days of protests this morning over public school closures in the city.
 

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Board Chair: We Have a Duty to Keep Working: Ben James of Law360 ($$) reports that yesterday, the Senate Health, Education, Labor and Pensions Committee (HELP) held a hearing concerning pending nominations to the National Labor Relations Board. Senator Tom Harkin (D-IA) stated that an executive committee meeting would be held on May 22 in order to determine whether the nominees should be sent to the full Senate for a confirmation vote. Chair Mark Gaston Pearce lamented that, in the interim, the Board owes the public a duty to keep working.

"Historically, the NLRB has functioned in the wake of constitutional challenges," he said. "We were born of controversy. In 1935 through 1937, our legitimacy was challenged in the courts. We continued to function, and when the Supreme Court finally decided the issue, we still had managed to serve the public. But most importantly, we owe it to the public to continue to work."

The Board's legitimacy is under attack from several angles, with some Senators and House Members attempting to introduce legislation to shut the Board down until a full quorum has been validly appointed. Further, the 3rd Circuit ruled yesterday that President Obama's recess appointments were constitutionally-invalid, joining the D.C. Circuit in finding that the Board did not have a quorum to act for quite some time. We will keep you posted as the nomination process moves towards a confirmation vote.

Right to Work Foundation Lobs ULP Allegations: Chris Sikich of the Indianapolis Star writes that the National Right to Work Foundation has filed unfair labor practice charges against Domtar Paper Co., alleging that the company has violated Indiana's "right to work" law by forcing employees to pay union dues. Under the law, nonunion members cannot be forced to pay union dues. However, the Right to Work Foundation believes that that is exactly what is happening at Domtar.

“Teamster union officials are extracting full union dues from workers who want to exercise their rights under Indiana’s popular new right to work law,” said Patrick Semmens, vice president of the National Right to Work Foundation, in a prepared statement. “This illegal action must stop.”

Domtar could not immediately be reached for comment. Indiana's law is relatively new and only affects contracts signed after March 14, 2012. We will keep you posted on these pending charges.

Board Certifies Georgetown Adjuncts Union: Penny Hung of the Georgetown Hoya reports that this past Monday, the National Labor Relations Board certified the Service Employees International Union as the official representative of adjunct faculty at Georgetown University. The faculty voted May 3 on whether or not to be represented by the SEIU, with a large majority voting in favor of unionization. The SEIU will now meet with university officials in order to negotiate a new contract for the newly-unionized adjuncts.

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Dr. Pepper Workers Wait for Vote Results: Jim Winburn of the Victorville Daily Press reports that workers employed by the Dr. Pepper Snapple Group in Southern California voted last Friday on whether to be represented by a union for the purposes of collective-bargaining. The workers, employed at the Southern California Logistics Airport outside of Los Angeles, could vote to be represented by the International Association of Machinists and Aerospace Workers, the International Brotherhood of Teamsters, or to remain unrepresented. Official results might not be released by the National Labor Relations Board until the end of the week. We will certainly keep you posted.

Union Election at Precision Castparts to Go Forward Next Month: The Seattle Times reports that next month, more than 2,000 employees at Precision Castparts in Oregon will vote on whether to be represented by the International Association of Machinists and Aerospace Workers for the purpose of collective-bargaining and representation. The election only involves production and maintenance staff, but does not include clerical workers or other professionals. We will keep you posted as to the results of next month's election.

Miami Cafeteria Workers Join SEIU: Margaux Herrera of the Miami Herald reports that cafeteria workers at the University of Miami have voted to join the Service Employees International Union (SEIU) for the purpose of collective bargaining. The unit, set to include about 320 members, voted to join branch 32BJ of the union. The SEIU will now bargain with Chartwells, the outside provider employed by UM to do food-service work. We will keep you posted as negotiations between the parties get rolling.

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Board Finds CalTech Scientists' Emails Protected Activity: Dan Prochilo of Law360 ($$) writes that Monday, a National Labor Relations Board Administrative Law Judge issued a decision holding that emails sent out by scientists at the California Institute of Technology (CalTech) ripping the University for creating a background check policy were protected communications under the National Labor Relations Act. The ALJ further held that CalTech's issuance of warning letters to the scientists was thus violative of the Act and that those warning letters would have to be removed from the scientists' permanent records.

CalTech had attempted to argue that the scientists' emails violated the university's anti-spam policy and further violated its policy against using university computers for political speech. However, the judge quickly dismissed that argument, holding that CalTech could not simply label the scientists' emails as political speech in order to escape the strictures of the Act.

Further, the judge opined that CalTech had allowed various other spam messages or email blasts to cross its system without reprimanding the sender, so it should not have punished the scientists for doing the same thing. If this case is appealed to the full Board, we will be following it to its conclusion. We will certainly keep you posted.

Adjunct Profs at Georgetown Join SEIU: Julia Tanaka of the Georgetown Voice reports that last weekend, adjunct professors at Georgetown University voted in favor of being represented by the Service Employees International Union (SEIU) for the purpose of collective bargaining. The election, conducted by agents of the National Labor Relations Board, saw a little less than half of the professors vote, with 72% of those voters casting their ballot in favor of unionization. The director of the SEIU praised both the professors and Georgetown administration for waging a respectful campaign.

“This was a respectful process between the union and Georgetown University,” he said. “The administration made a point of putting their social teaching into practice … I hope that other institutions will look at how Georgetown put its just employment policy into practice and that they will view this as a model for how universities should handle organizing campaigns.”

The Georgetown adjuncts are following in the footsteps of American University and George Washington University adjuncts, who have both voted to be represented by the SEIU in the past year. We will keep you posted as to whether any party objects to the election's results.

UC Hospital Workers Give Union OK To Strike: CBS San Francisco reports   that hospital workers at University of California hospitals have voted in favor of authorizing a strike in the midst of faltering contract negotiations. The hospital workers, represented by the American Federation of State, County, and Municipal Employees (AFSCME) overwhelmingly approved the strike authorization, with 97% of voters casting pro-strike ballots. The hospital workers have been working without a contract since October of last year.

A UC official addressed the strike vote, stating that AFSCME was attempting to deflect attention away from the fact that the workers are vehemently opposed to pension reforms that other unions have already approved. We will certainly be watching this story and will keep you posted as to any developments.

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Board ALJ Slams Western Refining for ULPs: Ben James of Law360 ($$) writes that yesterday, a National Labor Relations Board Administrative Law Judge (ALJ) ruled that Western Refining Inc. had violated the National Labor Relations Act (NLRA or the Act) by maintaining a "widespread and flagrant" anti-union campaign. The ALJ found that Western began violating the Act as soon as management officials got word of its employees' intent to begin organizing.

“Here, as soon as respondent learned that its employees were once again embarking upon union organizing efforts, it commenced a widespread and flagrant campaign designed to derail those efforts. Respondent interrogated its employees at numerous terminals in New Mexico and Texas about their union activities, threatened numerous employees with discipline if they talked about the union with fellow employees at work, while at the same time it permitted hired labor consultants and anti-union employees to solicit petitions against the union,” the decision said.

The ALJ also ruled that, since the violations were numerous and serious, a company official would have to read the notice accompanying the decision aloud to Western's employees. Neither party commented for the story.

ILWU, United Grain Square Off at Port of Vancouver: Aaron Corvin of the Columbian reports the International Longshore and Warehouse Union (ILWU) has begun lobbing unfair labor practice charges against United Grain. The dockworkers, represented by the ILWU and employed at the Port of Vancouver in Washington State, allege that several union members were illegally fired for refusing to operate a piece of equipment they believed to be unsafe.

The two sides have been engaged in a heated battle since United Grain locked out 44 ILWU workers in the middle of contract negotiations. With United Grain now employing replacement workers, tensions are not expected to lessen anytime soon. We will keep you posted with regards to the ULP charges and the continuing contract negotiations.

SEIU Victorious at Kaiser: Chad Terhune of the Los Angeles Times reports that last night, the Service Employees International Union (SEIU) United Healthcare Workers West won an election to become the exclusive bargaining representative for Kaiser Permanente employees in California. Interestingly, the SEIU had to fend off a serious challenge from the National Union of Healthcare Workers in order to be chosen as the Kaiser employees' representative. SEIU now represents approximately 45,000 employees at Kaiser, which an SEIU official characterized as the largest private-sector election since a Ford Motor Co. election in 1941.

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As we reminded last week, the Department of Labor has been scheduled to publish a final rule this month amending their "persuader regulations" and imposing new and expansive reporting requirements on employers, their labor relations consultants and, very likely, their attorneys.

Former DOL economist Diana Furchtgott-Roth just issued a report from the Manhattan Institute estimating the cost of the proposed changes. Ms. Furchtgott-Roth estimates that the cost of the revisions to its long-standing interpretations at $7.5 billion to $10.6 billion in the first year of implementation, and as much as $6.5 billion annually after that. This differs significantly from the Administration’s estimates of $826,000 per year. Ms. Furchtgott-Roth notes the Administration's figure "falls below the level required for mandatory cost-benefit review.”

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A recent Occupational Safety and Health Act development could have significant impact on union organizing campaigns. In a Standard Interpretation letter dated February 21, 2013, OSHA Deputy Assistant Secretary Richard E. Fairfax wrote that nonunion employees can designate a union representative to participate in an OSHA inspection at their work site:

The OSH Act authorizes participating in the walkaround portion of an OSHA inspection by "a representative by [the employer's] employees." 29 U.S.C. § 657(e). Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary's regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.

The Interpretation states that "there may be times when the presence of an employee representative who is not employed by that employer will allow a more effective inspection." According to Fairfax:

It is OSHA's view that representatives are "reasonably necessary" when they will make a positive contribution to a thorough and effective inspection.

And, as you point out, there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative's experience and skill, for example because of experience evaluating similar working conditions in a different plant. There are also many instances where non-English speaking workers want a representative who is fluent in both their own language and English, something that will facilitate more useful interactions with the CSHO during the inspection. Finally, workers in some situations may feel uncomfortable talking to an OSHA CSHO without the trusted presence of a representative of their choosing.

This OSHA Interpretation is significant to labor relations because it appears to dilute OSHA's own regulations requiring that the employee representative be employed by the employer being inspected except in limited circumstances. Specifically, 29 C.F.R. § 1903.8(c) states:

The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.

(emphasis added). The Interpretation is also inconsistent with OSHA's 2011 Field Operations Manual (CPL 02-00-150), which states:

Where employees are not represented by an authorized representative, there is no established safety committee, or employees have not chosen or agreed to an employee representative for OSHA inspection purposes (regardless of the existence of a safety committee), CSHOs shall determine if other employees would suitably represent the interests of employees on the walkaround. If selection of such an employee is impractical, CSHOs shall conduct interviews with a reasonable number of employees during the walkaround.

Moreover, the manual states that even where the employees involved are covered by a collective bargaining agreement, the representative chosen by the union must still be an employee of the employer pursuant to 29 C.F.R. § 1903.8(c).

As a result of this apparent relaxing of the requirements in Section 1903.8(c), the Interpretation may well encourage unions to use OSHA complaints and inspections as an organizing tool to get both access to an employer's facility and additional exposure to its employees during organizing campaigns. Indeed, according to the Interpretation, all that will be required to satisfy the "good cause" requirement of Section 1903.8(c) is some employees expressing discomfort at talking to the OSHA inspector without a union representative.

Consequently, employers should monitor how this Interpretation is applied, especially at facilities where there are plant safety committees, to determine if the creation of such a committee and other measures, if any, can be taken to minimize the likelihood that an OSHA inspector will permit a union representative to serve as the employees' representative during an inspection.

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SEIU Gets to Keep Million-Dollar Award, Says 9th Circuit: Ciaran McEvoy of Law360 ($$) reports that yesterday, the Ninth Circuit Court of Appeals affirmed a $1.4million judgment against the National Union of Healthcare Workers (NUHW). The court held that NUHW leadership was guilty of siphoning funds from Service Employees International Union (SEIU) coffers.

“The [rival group's] officers disagreed, which they may do, and they voiced their opposition, which they also may do,” the court stated in its ruling in the SEIU's favor. “What they may not do under the law is use their union's resources to actively obstruct implementation of the final decision.”

The case arose because NUHW leadership formerly had been employed by the SEIU. However, the NUHW was created by dissident SEIU members after the SEIU decided to consolidate several major healthcare unions. An NUHW spokesperson was unavailable for comment at the time this story was published.

Georgetown Adjuncts Set For Union Vote: Soo Chae of Georgetown's Vox Populi reports that adjunct professors at Georgetown University have moved one step closer to unionizing. The SEIU recently filed a request for election with the National Labor Relations Board. The election will most likely take place in mid-April, with Georgetown pledging to remain neutral in the lead-up to the vote.

“For adjuncts across the country, average full time equivalent salary is $21,000 per year with usually no health insurance, no benefits, no retirement plans, no access to professional development unless people happen to be in unions,” Maria Maisto, Georgetown Alum and president of the New Faculty Majority, said in her opening remarks.

Interestingly, Georgetown's President has also released an open letter to the community, asking all adjunct faculty to vote. We will keep you posted as the election nears.

Walmart sues Unions over Protests: Jessica Whole of the Chicago Tribune reports that Walmart has filed a lawsuit in Florida State Court against the United Food and Commercial Workers (UFCW) and OUR Walmart, a union subsidiary comprised of current and former Walmart employees. The suit, according to a Walmart spokesperson, was designed to protect customers and employees from disruptive union tactics.

A UFCW spokesperson referred the Tribune to OUR Walmart for comment, who had this to say:

"This is another attempt on Wal-Mart's behalf of ... silencing their employees and also the communities that support them," Denise Diaz, executive director of Central Florida Jobs With Justice Corp and a defendant named in the suit, said before reviewing the documents.

Walmart has not ruled out filing further suits in other states. Last January, representatives from OUR Walmart pledged to stop most of their picketing activities. However, this latest play between the parties will surely heighten hostilities.

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Board Issues Complaint Against Walmart Staffing Firms:  Josh Eidelson at The Nation reports that the National Labor Relations Board has issued a complaint against four separate companies who staff and manage Walmart's distribution center in Elwood, Illinois. The complaint alleges that the companies have repeatedly threatened and punished employees for attempting to organize. 

"They had targeted organizers ever since we got back to the warehouse," Philip Bailey, one of the fired workers, said Monday.

Walmart did not respond to requests for comment. We will keep you posted as this matter moves through the Board's processes.

US and Canadian Soccer Referees Looking to Organize: Buzz Carrick of the Dallas Morning News reports that soccer officials in the United States and Canada, through the Professional Soccer Referees Association (PSRA), have filed documentation with the National Labor Relations Board in order to vote on whether the referees desire to be collectively-represented. If the referees vote to be represented by the PSRA, Major League Soccer will be forced to negotiate with the PSRA over the referees' new terms and conditions of employment.

A date for the election is yet to be set, but sources say that the referees are enthusiastic about unionizing. We will keep you posted as more information is disclosed.

Nippon Paper Employees on Strike: Paul Gottlieb of The Peninsula Daily News reports that as of this morning, more than 100 employees at Nippon Paper have walked off the job in protest over stalled contract negotiations. The workers, represented by the Association of Western Pulp and Paper Workers, were also set to begin informational picketing in front of the Port Angeles paper mill. 

Contract talks have been going on for almost two years now, with Nippon recently imposing its "last best offer" on the employees. The union is hoping to reopen talks, with assistance from a federal mediator. We will be following this story as it develops further. 

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AFL-CIO Implores President Obama to Nominate a Full Labor Board: Ben James of Law360 ($$) writes that yesterday, the AFL-CIO executive council drafted a policy statement calling on President Obama to nominate a full slate of five members to the National Labor Relations Board. The AFL-CIO, representing 57 affiliate unions, further pledged to hold obstructing Senators from either party accountable for any foot-dragging.

“The president must immediately nominate, and the Senate must quickly confirm, a full package of nominees to the NLRB — five board members, including Chairman Mark Pearce, members [Richard] Griffin and [Sharon] Block, two Republican members, and Acting General Counsel Lafe Solomon,” the statement said.

The policy statement also took a swipe at the D.C. Circuit Court of Appeals' recent Noel Canning ruling, which purported to invalidate President Obama's recess appointments of Members Flynn, Block and Griffin. While a full Board would bring some much-needed certainty to labor law in this time of upheaval, expecting Senate Democrats and Republicans to quickly approve any Board nominations is probably wishful thinking at this point. We will certainly keep you posted if and when the nominations occur. 

UAW Campaign Gaining Momentum at TN Nissan Plant: Nathan Bomey of the Detroit Free Press reports  that hundreds of autoworkers at Nissan's Smyrna, TN plant gathered together yesterday to meet with UAW representatives in an effort to further UAW's organizing campaign at the plant. Previous UAW campaigns at the plant have failed to garner more than 30% of worker support for the union.

“We were surprised at the level of support,” an official said Wednesday. “It speaks to the amount of dissatisfaction in the company.”

Interestingly, current UAW President Bob King has stated that successfully organizing at a foreign-owned plant is one of the union's top priorities for the year. An election has yet to be scheduled, but we will keep you posted if the situation develops further.

School Board Fears Strongsville, OH Teachers' Strike: Jen Steer of newsnet5.com reports that the Strongsville, Ohio School Board has requested police officers to station themselves outside of all city schools on Monday in anticipation of a teachers' strike. David Frazee, the School Board President, spoke to reporters and expressed his dismay at the lack of progress in negotiations between the teachers' union and city officials.

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The National Labor Relations Board's appeal of a May 2012 order striking down its "quickie election" rule in Chamber of Commerce of the United States of America v. NLRB, Case No. 12-5250, remains pending in the U.S. Court of Appeals for the District of Columbia Circuit. However, on Tuesday the Court issued a one-page order strongly suggesting how the court will decide the case if its decision in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2013), is upheld. The order states:

Upon consideration of the court’s opinion and judgment issued January 25, 2013, in No. 12-1115, et al. - Noel Canning, a Division of the Noel Corporation v. NLRB, it is

ORDERED, on the court’s own motion, that this case be removed from the oral argument calendar for April 4, 2013, and held in abeyance pending further order of the court.

In May 2012 a federal district court granted summary judgment to the U.S. Chamber of Commerce in its lawsuit against the NLRB's "quickie election" rule.  The  Board rule amended its election case procedures to shorten the time between the filing of a petition and the conduct of a union representation election. The district court ruled that the final rule was promulgated without a proper quorum of three Board Members:

Two members of the Board [(Chairman Pearce and Member Becker)] participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.

As we noted two weeks ago, Noel Canning should impact decisions and rules issued by the Board during Member Becker's term because he was a recess appointee appointed during an intrasession recess. If intrasession recess appointments are unconstitutional as set forth in Noel Canning, the Board would have had no quorum to act on the "quickie election" rules regardless of whether Hayes "participated" in the vote on the "quickie election" rule.

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El Paso Nurses Choose NNOC as Bargaining Agent: Vic Kolenc of the El-Paso Times reports that nurses at Sierra Medical Center in El Paso, TX have voted to select the National Nurses Organizing Committee (NNOC) as their exclusive bargaining representative. The nurses voted Tuesday, with the union winning by about 40 votes (113-74).  A Sierra spokesperson expressed her disappointment with the union's victory, but promised to negotiate in good faith with the newly-minted union.

"Sierra Medical Center believes what's best for employees and management is working together without the involvement of a third party," Garcia said. "It has always been our position that the hospital offers competitive wages and benefits, and management promotes a positive work environment."

A union spokeswoman, however, expressed her excitement with the victory, claiming that El Paso is now a "union town" for nurses.

NYC Accepting Driver Bids Even Though Strike Continues: Phil Corso of the Queens Times-Ledger reports that the New York City Department of Education (DOE) has begun the process of reviewing bids from several bus companies over the more than 1,100 bus routes that went out in late December, even though the city is still dealing with the Amalgamated Transit Union (ATU) school bus drivers' strike, which is now almost a month old.

The city is hoping that the new round of bids would save millions of dollars in the long term because any new bids will not include driver job protections, which has become a major sticking point in negotiations between the city and the ATU. The union has asked the mayor to suspend bidding and put ATU employees back on the job.

“The mayor has the power to put our drivers and matrons back to work,” said Michael Cordiello, president of ATU Local 1181. “All we ask is that he suspend the bids and is willing to discuss ways to reduce costs within the school bus transportation industry, which the union has shown has nothing to do with keeping the most experienced school bus crews on the road.”

Workers Push Back Against Activist Union: Ira Kantor of the Boston Herald reports that workers at Complete Cleaning, Inc. in Lynn, MA have won a settlement after filing a complaint with the National Labor Relations Board against the Services Employees International Union (SEIU), Local 615. The complaint alleged that SEIU officials had attempted to claim a monopoly over Complete Cleaning employees' bargaining rights.

“Massachusetts needs a Right to Work law to make it less difficult for workers to keep predatory union bosses in check,” said Mark Mix, president of the National Right to Work Legal Defense Foundation.

The settlement also requires the SEIU to stop attempting to claim bargaining power until it can affirmatively show that it has the support of a majority of employees at Complete Cleaning.
 

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NY High Court Decision Could Push Employers Toward Zero Tolerance: Pete Brush of Law360 ($$) reports that yesterday New York's highest court upheld an arbitration decision reinstating a unionized school bus driver who was fired after testing positive for marijuana. Experts believe that the court's decision could compel public employers to insert "zero tolerance" language regarding the use of illicit substances.

"Some districts do have zero tolerance policies," [the driver's attorney] said. “I'm sure this district will now try to negotiate with the union to get a zero tolerance policy. If it's a solid policy, negotiated with the union, then everyone is on the same page.”

A spokesperson for the school district stated that they were disappointed with the court's decision.

Nurses File ULP Alleging Secret Neutrality Agreement: TheSuburbanite reports that two Ohio nurses have filed charges with the National Labor Relations Board, complaining that an August vote to unionize nurses at Affinity Medical Center an Ohio was tainted. The nurses have alleged that the National Nurses Organizing Committee (NNOC) and Affinity engaged in a secret "neutrality agreement" wherein the two parties negotiated bargaining concessions at the expense of hospital employees. A spokesman for the NNOC lambasted the nurses' claims: 

“The claims (the foundation) makes in that release are manufactured, wholly without merit and ludicrous,” Idelson said. “The notion that the company is aiding the nurse’s union is absurd on its face.”

The nurses are hoping that the court will not order Affinity to negotiate with the NNOC, because " the union lacks the true and uncoerced support of a majority of employees," according to the complaint.

KAISER Schedules Another Vote: The Press-Enterprise reports that almost 45,000 Kaiser Permanente employees in California will decide whether they will be represented collectively by a union in April, according to a National Labor Relations Board spokesperson. 

The employees are deciding on whether to remain represented by the SEIU or to jettison their current union in favor of the National Union of Healthcare Workers. Of course, the employees could also vote to become unrepresented. 
 

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It was going to be hard to top 2011 in terms of unique and dynamic labor law developments. But 2012 may just have lived up to the task.

Seeking to ensure that the Board would have a quorum to operate during the year, on January 4, 2012, President Obama attempted the "recess" appointment of three members.  Despite the controversy swirling about these appointments, the Board continued apace to expand the rights of employees and unions under the National Labor Relations Act.  Among the more notable results were the invalidation of class waivers and mandatory arbitration agreements; the further diminution of the facility-wide presumption in organizing cases; and a number of decisions tilting the balance in collective-bargaining negotiations.  At the same time, the Acting General Counsel continued to pursue an expansive agenda -- issuing numerous new complaints and explanatory memoranda in social media cases.

The courts, however, dealt the Board a series of blows throughout the year, dismissing the Board's challenge to Arizona's secret ballot amendment; and invalidating the Board's rule-making on required notice-posting and "quickie elections".  But no court action carried as much import as the January 2013 Noel Canning decision by the Circuit Court of Appeals for D.C. which declared the President's "recess" appointments unconstitutional, and found that the Board lacked a quorum to act throughout 2012.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way. Today we are publishing "Labor Law in 2012: A Year in Review." This brief summary highlights some of the most noteworthy developments in 2012. We hope you find it a helpful resource as we head into what is certain to be one of the most interesting years in labor law in some time.

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Americold Worker Files Charges Against Employer: Derek Barichello of saukvalley.com reports that Karen Dixon, an employee of Americold Logistics in Rochelle, Illinois, has filed a complaint with the National Labor Relations Board alleging that the company committed several unfair labor practices after workers voted to be represented by the Retail, Wholesale and Department Store union (RWDS). Interestingly, Dixon's complaint alleges that, after the election, she attempted to garner signatures for a petition against union representation, but was threatened with discharge by management if she continued to do so. In pertinent part, the complaint alleges as follows: 

Americold management discriminately enforced its policy to bar Cox and other independent-minded employees from collecting petition signatures while off duty, even threatening to fire Cox from her job if she continued – while non-employee union organizers are given wide-ranging access to company facilities to counteract Cox’s efforts.

Dixon does not want to pay union dues, which she would be forced to do once the RWDS and the company sign a collective bargaining agreement since Illinois is not a Right to Work state. This has been the third attempt by Americold employees to organize.

Former Board Chairman Blasts Recess Appointments: Former NLRB Chairman Peter Schaumber, in an opinion piece posted in the National Review Online, argues that the D.C. Circuit should invalidate President Obama's intra-session recess appointments of Board Members Sharon Block and Richard Griffin. Schaumber opines that, according to the Constitution and the intent of the framers, President Obama's power to make recess appointments is only valid if the appointments occur during an inter-session recess, not one of the many intra-session recesses that occur each year in the Senate.

This reading of the Recess Clause is supported not only by its text but by the historical context. At the time of the Framers, the Senate was in recess for six to nine months between sessions; once in recess, transportation made it difficult for them to return to vote on an appointment.

Schaumber, however, realizes that the answer may ultimately be a political question that the courts will avoid. Even though the Constitutionality of the appointments is certainly suspect, the Senate in recent years has largely acquiesced to the validity of intra-session recess appointments. We here at LRToday have been following this story for quite some time. We will certainly keep you posted as to any developments.

Board Investigating Possible ULPs at UNFI: The Auburn Reporter writes that the National Labor Relations Board has begun investigating allegations of unfair labor practices committed by United Natural Foods Inc. in connection with an unfair labor practice strike organized by drivers and warehouse workers at UNFI's Auburn warehouse. The strike occurred on December 10, 2012 and lasted three days. Following the strike, the union claims it gave the company an unconditional offer to return to work. The company allegedly accepted this offer, then rescinded it, eventually replacing 72 union workers with permanent replacement workers. The union returned to the picket line on December 13, 2012.

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Lawsuit Alleges Member Griffin Complicit in Embezzlement Cover-Up: Lachlan Markey at the Washington Free Beacon reports that a lawsuit filed in California federal court accuses National Labor Relations Board member Richard Griffin of being complicit in a plot to cover up acts of embezzlement at the International Union of Operating Engineers (IUOE). The lengthy complaint, which can be found HERE, also alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO Act).

The suit seeks over $5million in damages for a number of RICO Act violations, as well as violations of the Labor Management and Disclosure Act. A Board spokesman referred requests for comment to Griffin's attorney, who has called the allegations "preposterous." 

This is not the first time that Griffin has been in some hot water. Back in July of 2012, Senator Orrin Hatch (R-Utah) sent Griffin a letter requesting information regarding any ties Griffin may have had with IUOE members who have been convicted of crimes. We will certainly keep you posted on any developments in this case.

Hockey is (Almost) Back: The X's and O's of the New Collective Bargaining Agreement: Donnie Tasser of the Pitt News has laid out the major terms that the National Hockey League and the Players' Association have agreed to in order to end the current lockout. Pucks are tentatively set to drop on January 19, 2013 on a 48-game season. While players and owners still need to ratify the deal, at this point signing the agreement seems to be nothing more than a formality.

Both sides made several major concessions in bargaining in order to reach an agreement. In particular, the division of revenue between players and owners has dropped from 57/43 to an even 50/50 split. The NHL also agreed with the Players' Association that player salary variances would be capped at 35%.

Local Alro Steel Union Members to Vote on De-Unionizing: Jeff Engel of the Milwaukee Business Journal reports that production employees at Local Alro Steel in Wauwatosa, WI will vote this Thursday on whether or not they wish to remain represented by the United Steelworkers, AFL-CIO. The 34 employees voting had filed a petition with the National Labor Relations Board on December 7, 2012, seeking a decertification vote. The current collective bargaining unit governing the employees expires in November of this year, so there is a possibility that the employees could shop around for new representation.

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Today Lafe Solomon, Acting General Counsel, National Labor Relations Board, released the annual "Summary of Operations" for Fiscal Year 2012. The report focuses mainly on the statistical accomplishments of the Board for FY 2012, and highlights that: 

• 93.9% of all initial representation elections were held within 56 days of the filing of the petition (up from 91.7% last year);
• Initial elections in union representation elections were conducted in a media of 38 days from the filing of the petition;
• 97% of the 37 10(j) petitions litigated in federal district court resulted in a satisfactory settlement or substantial victory;
• Regional offices settled 91% of the unfair labor practice charges that were deemed by the regional office to have merit (down from 93%);
• Regional offices won in whole or in part 90.1% of the unfair labor practice and compliance cases before administrative law judges (up from 87%); and
• $44,316,059 was recovered on behalf of employees as backpay or reimbursement of fees, dues, and fines.

AGC Solomon also noted that the Agency exceed two out of three of its "overarching casehandling goals," closing:

• 84.5% of all representation cases within 100 days (target 85.2%),
• 72.7% of all unfair labor practice cases within 120 days (target 72.0%), and
• 83.8% of all meritorious unfair labor practice cases within 365 days (target 80.3%).

As he described 2011 in last year's report, AGC Solomon labeled 2012 as "another successful fiscal year enforcing the National Labor Relations Act," and "another year of excellent casehandling performance" in his introductory letter.

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On December 14, 2012, the National Labor Relations Board reversed decade-old precedent and held in Alan Ritchey, Inc., 359 NLRB No. 40, that unionized employers may not impose discretionary discipline unilaterally. The decision marks another in the trend of mid-December Board offerings completely changing the course of NLRA interpretation -- and prospectively only.

This case arose after Respondent’s employees voted to be represented by the Union, but before the parties were able to enter into a binding collective-bargaining agreement. Respondent had continued to impose discipline for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards. The sanctions, ranging from a formal warning to discharge, were imposed pursuant to Respondent’s pre-existing progressive disciplinary system, which had been in effect since Respondent opened the facility -- and prior to the union's recognition. While Respondent’s disciplinary system outlined specific sanctions to be enacted in response to certain situations, the Respondent’s employee handbook also provided that Respondent reserved the right to exercise discretion in the enforcement of its policies, acknowledging that situations may arise that would warrant flexibility on the part of management.

The Board relied heavily on its decision in Oneita Knitting Mills, 205 NLRB 500 (1973) wherein it held that an employer with a past history of a merit increase program could not unilaterally discontinue the program, nor could the employer exercise unilateral discretion with regard to such increases, once an exclusive bargaining agent had been selected by the employees. Instead, the employer was required to continue the general framework and to bargain with the union over the amount of the "discretionary" merit-based increases.

Purportedly applying the principle from Oneita Knitting to the case at hand, the Board held that where an employer’s disciplinary system is fixed as to broad standards, but discretionary as to what type of discipline will be imposed in a particular circumstance, an employer must maintain the system’s fixed aspects and bargain with the Union over any discretionary aspects of the system. The Board further held that the duty to bargain is triggered before an employee could be suspended, demoted, or discharged. However, the duty to bargain over lesser sanctions, such as oral or written warnings, is not triggered until after their imposition. The Board maintained that the difference in the timing of the duty to bargain was appropriate because suspensions and discharges greatly affect an employee’s terms and conditions of employment, while oral and written warnings have much less of an effect.

Where the pre-imposition duty to bargain exists, an employer is now obligated to provide the Union with notice and an opportunity to bargain before discipline is imposed. The Board held that this duty involves sufficient advance notice to the Union to allow for meaningful discussion regarding the grounds for imposing discipline and the grounds supporting the form of discipline chosen to the extent that there has been an exercise of discretion on the part of management officials. Furthermore, the employer has a duty to provide the Union with relevant information under the Board’s established approach to information requests.

Importantly, the employer is not required to bargain to agreement or impasse before the imposition of discipline. Instead, the duty to bargain continues after the imposition of discipline if the parties are unable to reach an agreement before the imposition of sanctions. Moreover, the employer need not bargain over the imposition of discipline that is consistent with its past practices. Finally, the Board held that an employer may act unilaterally in any situation that presents an “exigent circumstance.” The Board defined an exigent circumstance as any situation where an employer has a reasonable and good-faith belief that an employee’s continued presence on the job presents a serious, imminent danger to the employer’s personnel or business.

As mentioned above, as was the case with its recent decision in WKYC-TV, 359 NLRB No. 30 (2012), the Board held that this new interpretation will be applied prospectively only.

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Earlier this month the National Labor Relations Board found that a Regional Director did not abuse his discretion by holding a decertification petition in abeyance pending disposition of an unfair labor practice case despite the fact that the union had requested to proceed with an earlier decertification petition while the same charges were pending.

In The Finley Hospital, NLRB Case No. 33-RD-000899 (Oct. 12, 2012), the union filed an unfair labor practice charge alleging that the employer failed to provide wage increases following the expiration of the collective bargaining agreement. Subsequent to the filing of that charge, the employer and the union negotiated a new collective bargaining agreement, which the employer claimed satisfied any potential monetary remedy owed the employees from the employer's alleged unfair labor practice. The union disputed that contention, and an administrative law judge issued a decision finding a violation by the employer. The employer then filed exceptions to the administrative law judge's decision with the Board.

In 2007 after the administrative law judge's decision, a decertification petition was filed and the union requested to proceed to an election notwithstanding the unfair labor practice allegations that were pending before the Board. The union won the election 144-137.

Nineteen months after the 2007 election, and while the union's unfair labor practice allegations were still pending before the Board, the instant decertification petition was filed. Despite the significant passage of time and the fact that the union requested to proceed with the 2007 election, the union did not request to proceed to an election on the new petition. As a result, the Regional Director issued a decision holding the petition in abeyance.

The Board affirmed the Regional Director's decision:

The Employer’s continuing failure to pay contractual wage increases was broad and serious. It adversely affected the entire unit, and continued to do so at the time the Regional Director decided to hold the petition in abeyance. In those circumstances, we cannot say that the Regional Director abused his discretion in concluding that the delay in remedying the Employer’s conduct, which the judge had found unlawful, reasonably could have created an impression among unit employees that the Union was ineffectual or incapable of protecting their rights. Nor did the Regional Director abuse his discretion in concluding that the Employer’s unremedied violations would have interfered with the holding of a free and fair election under the appropriate laboratory conditions.

Member Hayes, meanwhile, dissented because he found that the Regional Director abused his discretion. First, Member Hayes asserts that the charges relied upon to block the petition were significantly remote in time from the filing of the petition, thereby "lessening the likelihood of their affecting employee choice." Second, Member Hayes found that the most significant allegation had been "substantially remedied in the meantime by productive negotiations between the parties" that resulted in two successor collective bargaining agreements and a series of wage increases. Finally,

a year and a half before the petition was filed the Regional Director permitted a decertification election to proceed in the same unit while the same charges were pending before the Board. The Union won that election. Under these circumstances, I find it unreasonable to conclude that the delay in the Board's final resolution of the unfair labor practice case would cause employees to believe the Union's representation of employees was ineffectual or would otherwise interfere with employee free choice had an election been held at the time the petition was filed.

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The National Labor Relations Board issued a press release today touting its work in fiscal year 2012. Between October 1, 2011 and September 30, 2012, the NLRB issued 341 decisions in contested cases - 277 unfair labor practice cases and 64 representation cases. Included in those decisions were nine of its 10 oldest decisions. By removing those from its docket, the average age of pending cases was cut in half from 219 days to 108 days.

The Board's press release highlights the significant topics it addressed in FY 2012:

Mandatory arbitration: In D.R. Horton, the Board ruled that it is a violation of federal labor law to require employees to sign arbitration agreements that prohibit them from joining together in any forum to bring legal claims against the employer.

Lawsuits as unfair labor practices: A number of decisions, including two issued by the full Board, found that lawsuits filed by employers or unions may be unfair labor practices in certain circumstances. Federal Security Inc.; J.A. Croson Co.; Operative Plasterers and Cement Masons (Standard Drywall); Sheet Metal Workers (EP Donnelly); and Allied Mechanical Services.

Symphony musicians: In three cases, set in Cape Cod, MA, Lancaster, PA, and Plano, TX, the Board found that symphony musicians are employees, not independent contractors, and so are eligible to join a union.

Facebook firings: In its first look at a case involving a discharge for Facebook posts, the Board found that the particular postings that led to the discharge were not protected. More such cases are pending.

Immigration status and backpay: In Flaum Appetizing, the Board found that employers must have good reason to raise the immigration status of employees during procedures to determine backpay awards, and cannot raise the question as a ‘fishing expedition’ to avoid payment. 

Successor employer obligations: In Massey Energy Company, the Board found that the company unlawfully refused to hire former unionized employees in order to avoid union obligations at a coal mine. The Board also found the company to be a single employer with its subsidiary, Mammoth Coal Company.

Specialty Healthcare standards: The Board applied the standards for unit determination that were clarified in its August 2011 opinion in Specialty Healthcare to several cases, including DTG Operations, Northrop Grumman Shipyard, and Odwalla, Inc.

The statement also referenced the new election rules it passed that were designed to "streamline the representation case process." However, as we have discussed in this blog, the new "quickie" election rules are currently suspended pending legal challenges, and several of the holdings in the decisions referenced above (e.g., class action waivers and the Specialty Healthcare standard) are currently being challenged in appellate courts. We will continue to provide updates on those issues and other labor law developments as they occur.

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On Friday District of Columbia District Court Judge James Boasberg issued an opinion reaffirming his ruling striking down the National Labor Relations Board's "quickie election" rules in Chamber of Commerce of the United States of America v. NLRB, Civil Action No. 11-2262.

In June the NLRB filed a Motion to Amend or Alter Judgment asserting that Member Brian Hayes' statements and actions prior to the December 16th vote to adopt the new election rules should qualify him for inclusion in the quorum, and that a newly submitted affidavit constitutes "proof that on December 16 Member Hayes was present in the Board's electronic voting room." Judge Boasberg rejected both arguments.

The court easily disposed of the NLRB's first argument:

Although this argument expands and improves upon that which the agency previously espoused, the Court has already rejected its core:

Myriad subsidiary decisions are required in the process of promulgating regulations, but it is the final decision to adopt (or not to adopt) a given rule that transforms words on paper into binding law. That decision, which in this case took place on December 16, 2011, required a quorum.

The affidavit presented by the NLRB in support of its second argument, however, presented a "closer question." The affidavit describes the electronic voting room and provides details on what occurred in that "virtual space" on December 13-16, 2011. Specifically, it asserts that all three members were actively voting on various matters those days, that Hayes himself directed 18 votes to be cast on December 16, the Chairman electronically circulated the new election rules to Member Hayes creating a "voting task" asking Hayes to cast his vote, and that Member Hayes' deputy chief counsel electronically "opened" the task 19 minutes later. By virtue of this evidence, the NLRB asserts that Hayes "was actually present and participating in the very same room at the very same time that this vote was held."

In response to this argument, Judge Boasberg first chastised the agency for its failure to present this evidence earlier:

But where was this evidence and corresponding argument at summary-judgment time? The newly presented facts about the electronic voting room were not previously unavailable. Defendant simply chose not to include them.

...

Ultimately, the agency’s insistence that it was blindsided by Plaintiffs’ argument that Hayes did not participate in the vote does not hold water.

Second, even if the evidence were timely, Judge Boasberg found that the new evidence would not have changed the court's prior ruling striking down the new election rules:

While Burnett’s affidavit certainly buttresses the agency’s position, it by no means achieves this demanding standard. First, Hayes’s presence for and participation in other votes taken that day do not necessarily establish his presence for the vote in question. He must have been present for this vote to be counted toward this quorum. Second, even if Hayes’s employees were authorized to cast votes on his behalf with respect to the other actions up for consideration that day, there is no indication that they were authorized to vote or abstain on his behalf with respect to the decision to adopt the final rule. Indeed, Hayes’s statement that after December 15 he simply “gave no thought to whether further action was required of [him]” with respect to the final rule belies that possibility. Third, even assuming that specific authorization was not required and Hayes’s deputy chief counsel’s opening the voting task could be attributed to Hayes, the NLRB has not provided any indication that the rule was sent for publication after that took place. In fact, the Board’s consistent position has been that the Solicitor published the final rule in the Federal Register “[i]mmediately upon approval of a final rule by a majority of the Board.” ... In sum, then, even if Hayes’s deputy’s opening the voting task could be taken as Hayes’s participation and subsequent abstention, the agency has not shown that this purported abstention occurred prior to publication, let alone that Hayes was given a reasonable amount of time to cast a vote.

Despite Judge Boasberg's decision reaffirming his prior ruling, employers should continue to monitor this case and any action by the NLRB regarding the new election rules as the NLRB has two possible options for reinstating them. First, it can appeal Judge Boasberg's rulings to the Court of Appeals for the District of Columbia. A second option is for the Board to take matters into its own hands and hold an expedited vote on the "quickie election" rules now that it currently has four Board members, three of which--Chairman Pearce and Members Griffin and Block--presumably will vote in favor of the new rules. However, even this second option does not guarantee the enforceability of the new election rules because the recess appointments of Griffin and Block are currently being challenged in Canning v. NLRB, Case No. 12-1115 (D.C. Cir.). If that challenge is successful, then any new vote on the "quickie election" rules would be null and void under New Process Steel. We will certainly keep you posted.

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The National Labor Relations Board filed a Motion to Amend or Alter Judgment yesterday in Chamber of Commerce of the United States of America v NLRB, Civil Action No. 11-2262, where District of Columbia District Court Judge James Boasberg struck down the NLRB's "quickie election" rules because the NLRB lacked a quorum when it passed the new rules. The motion also asks that the new election rules be reinstated pending final judgment.

The NLRB's motion asserts that:

The Court's finding that the third member of the Board, Member Brian Hayes, did not "show up" or participate on December 16,2011, when the other two Board members voted, is predicated upon a mistaken understanding of the facts regarding the Board's electronic voting room.

To correct this mistake, the Board is supplying the Court with proof that on December 16 Member Hayes was present in the Board's electronic voting room. While the voting was occurring on this rule, he simultaneously participated in the votes taken on other matters, and deliberately abstained from voting on this rule. He opened, but did not act upon, the voting task in this rule.

The purported proof supplied by the NLRB does provide more detail regarding the steps taken by Chairman Pearce and Member Becker to finalize and approve the rule on December 16, 2011. The NLRB's evidence shows that during the morning of December 16 Member Becker made changes to the proposed rule, which were then reviewed and modified by Chairman Pearce. Minutes later Member Becker approved those modifications. Chairman Pearce then used the Board's electronic voting system to circulate the final draft of the rule. The NLRB asserts that Chairman Pearce's action was intended only for Member Hayes, as he was the only one who had not voted, thereby creating a "task" for Member Hayes and "asking him to vote." 

At that point, the NLRB asserts, Member Hayes "abstained" rather than was "absent" during the vote. First, the NLRB presents evidence that Member Hayes' staff accessed the electronic voting system and that Member Hayes "directed eighteen votes to be cast in the room on the 16th while the rule was pending." Second, the NLRB asserts that Member Hayes' deputy chief counsel opened Chairman Pearce's call to vote on the new election rules. The NLRB argues that these facts establish that Member Hayes was "present and participating in the very same room and at the very same time that this vote was held," and thus there was a quorum giving it authority to pass the new election rules.

The NLRB's motion also asserts that not only was Member Hayes "present," but that he intentionally abstained from voting based on the fact that he actively participated in the process on December 15, 2011, and had earlier stated that he did not want to be obstructionist. However, these are not new facts, and were already considered by the court in its ruling on the motion for summary judgment.

As we set forth in a previous post, Judge Boasberg determined that on December 15th, Chairman Pearce's staff emailed Member Hayes to determine whether he would be circulating anything to be published with the final rule. Member Hayes conveyed that he would not attach any statement to the Final Rule so long as, consistent with the Board's December 14th Order, he would be able to add a dissent later on. However, and critical to Judge Boasberg's decision, the rule was not yet in its final form as of December 15.

While the NLRB's motion does present new facts suggesting that Member Hayes was "present" in the electronic voting room on December 16, it remains to be seen whether these new facts can carry the day for the NLRB. As Judge Boasberg found, it is undisputed that:

In situations where a particular Board Member has not voted and immediate action is desired, the Executive Secretary or Solicitor may convey, by phone or email, a request to act.

The NLRB's motion presents no facts establishing that it notified Member Hayes that "immediate" action was desired on the December 16 call to vote. Moreover, the NLRB does not contest Judge Boasberg's finding that there was no follow-up by anyone to confirm whether Member Hayes intended to vote as was the NLRB's usual practice. Finally, the NLRB's motion presents no evidence indicating how long the eighteen measures voted on by Member Hayes on December 16 were pending. If it turns out that Member Hayes did not vote on any measure circulated on December 16, or only voted on a minority of the ones that were circulated that day, the court might be reluctant to find that Member Hayes' failure to mark his vote should constitute an abstention.

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The National Labor Relations Board ruled yesterday on requests for review in two separate representation cases involving retail stores. The two rulings, when read together, may suggest that the Board is primed to eliminate special industry and occupation rules, such as the long-standing presumption for store-wide bargaining units in retail stores, used to determine appropriate bargaining units.

In Home Depot U.S.A., Inc., Case No. 20-RC-067144, the Regional Director issued a decision finding that the petitioner's requested unit, which sought some, but not all, of the sales associates at the employer's retail store, was inappropriate, and that the only appropriate unit was a traditional retail wall-to-wall unit given the functional integration, interchange, and common sales duties performed by the employees at the store.

The petitioner challenged the Regional Director's decision by claiming that the Regional Director either "ignored the legal standard" set forth in Specialty Healthcare, 357 NLRB No. 83 (2011), or that the decision departed from that standard. In Specialty Healthcare, the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the Board signaled that it now believes that smaller units -- such as units that consist of only one department, or perhaps even one job classification -- should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.

In a one page decision, the Board unanimously denied the petitioner's request for review:

Petitioner's Request for Review of the Regional Director's Decision and Direction of Election is denied as it raises no substantial issues warranting review. We agree with the Regional Director's finding that the petitioned-for unit is not appropriate, and we note that Petitioner's Request for Review does not seek any alternative unit. In those circumstances, we find it unnecessary to pass on the Regional Director's further finding that only a wall-to-wall unit is appropriate.

(emphasis added).

Meanwhile, the Board granted the employer's request for review in Bergdorf Goodman, Case No. 2-RC-076954, in which the Regional Director found that the petitioner's requested unit was appropriate. The petitioned-for unit was the:

women's shoes associates in the 2nd Floor Designer Shoes Department and in the 5th Floor Contemporary Shoes Department employed in the Employer's retail store located at 754 Fifth Avenue, New York, NY.

Similar to Home Depot, the employer asserted that the only appropriate unit is a store-wide unit.

On May 4, 2012, the Regional Director issued a decision finding that the petitioned-for unit is appropriate because the women's shoe associates position:

requires a distinct skill set from other sales associates due to the unique nature of the product they are selling. If a shoe is not sized appropriately for a customers, discomfort and possible knee, back and other physical injuries could result.

The Regional Director also found that the women's shoes associates were compensated differently than the other sales associates and that there was little interchange and interaction with other employees, which outweighed the common terms and conditions of employment among all employees.

In support of a wall-to-wall unit, the employer asserted that the Board noted in Specialty Healthcare that its ruling was not meant to disturb special industry and occupation rules for determining an appropriate bargaining unit; therefore, the Regional Director had to follow the industry presumption of a wall-to-wall unit in retail settings. In response, the Regional Director noted that:

though the presumption of a store-wide unit exists, the presumption can and has been rebutted in this case.

(emphasis added). The employer requested review of the Regional Director's decision, and the Board unanimously granted it "as it raises substantial issues warranting review."

Given that Specialty Healthcare is a relatively recent decision supported by the current Board, it is unlikely that the majority granted the employer's request with a view towards finding the petitioned-for unit inappropriate. Rather, the Board may wish to clarify the effect of Specialty Healthcare by eliminating the "special industry and occupation rules" -- such as the presumption for wall-to-wall units -- in a retail setting.

Thus, retailers may take some comfort that Home Depot confirms that Specialty Healthcare does not grant petitioners unlimited discretion in crafting bargaining units. They must pay close attention to the Bergdorf Goodman case, however, to see exactly where the Board draws the line on historic special retail industry and occupational rules used to determine appropriate bargaining units. 

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The federal court ruling striking down the National Labor Relations Board's new "quickie" election rules and its aftermath have been the subject of much discussion this week. Our analysis and perspective on the ruling can be found here and here, and on the NLRB's subsequent announcement that it is suspending implementation of the new election rule here and here. For additional analysis and viewpoints on the invalidation of the new election rules, take a look at these posts:

• NLRB Union Representation Election Rule Struck Down for Lack of Quorum by Lee Beck of Federal Regulations Advisor
• U.S. District Court Invalidates "Quickie" Election Rule by Tyler Hendry of New York Labor & Employment Law Report
• NLRB Election Rules Invalid — For Now by Bryan M. Okeefe of The Labor & Employment Report
• Federal Court Invalidates Ambush Election Rules, Dealing NLRB Yet Another Setback by Mark Theodore of Labor Relations Update
• That was fast: Court voids NLRB "quickie" union-election rulesby Eric B. Meyer of The Employer Handbook
• Technicality Snarls Fairer NLRB Union Election Rules by Donna Jablonski of the AFL-CIO Now

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"It's better to be lucky than good."

Given their inability to persuade the National Labor Relations Board not to pass the new "quickie" election rule, as well as their inability to convince Member Hayes to step down to prevent its passage, perhaps this is what employers and opponents to the rule are thinking this morning after yesterday's decision by District Court Judge James Boasberg of the District Court for the District of Columbia, in which Judge Boasberg invalidated the NLRB's new "quickie" election rule. Specifically, Judge Boasberg found that the NLRB failed to have a quorum to pass the new election rule. While the decision gives employers at least temporary relief from the new rule, Judge Boasberg's ruling begs the question:

How could the NLRB not have a quorum under New Process Steel when the Board had three members at the time?

As Judge Boasberg's decision lays out, the devil's in the details.

It started on June 22, 2011, when the Board formally proposed to amend its procedures for resolving disputes about union representation in a Notice of Proposed Rulemaking (NPRM), which was issued by a 3-1 vote of the four members holding office at the time. The NLRB received 65,000 written comments in response, and the Board held two full days of hearing on the proposed rule. Again, all four members at the time participated in the hearing. So far so good.

Subsequently, then-Chairman Liebman's term expired leaving three members, current Chairman Pearce, Member Becker, and Member Hayes. In preparation for issuing of the final rule, the three remaining members took steps for issuing the new election rule.

• November 30, 2011: the remaining three members considered a resolution to "[p]repare a final rule to be published in the Federal Register containing" eight of the amendments proposed in the NPRM and to "[c]ontinue to deliberate on the remainder" of the proposed amendments. The resolution passed by a vote of 2-1, with Member Hayes dissenting.
• December 9: Consistent with that resolution, the final rule was prepared and a draft was circulated by Chairman Pearce via email.
• December 12: A second draft was circulated via email.
• December 13: A third draft was circulated in the Board's internal Judicial Case Management System (JCMS).

At this juncture, an explanation of the NLRB's JCMS system is warranted to understand the Board's later misstep:

JCMS is the ordinary procedure for circulating and revising draft decisions, rules, and other documents, and for voting - generally either "approved" or "noted" with an attached dissent or concurrence. The case or rule is moved to issuance when votes are recorded for all Board Members as to the final versions of all circulated documents.

Moreover, and critical to Judge Boasberg's ruling:

In situations where a particular Board Member has not voted and immediate action is desired, the Executive Secretary or Solicitor may convey, by phone or email, a request to act."

It should come as no surprise, then, that it was the Board's failure to follow this custom that ultimately doomed the final rule, as the Board continued to revise the final rule and then rushed the vote and publication for the final version just hours after it was circulated:

• December 14: Chairman distributed by email a draft Order, which directed the Solicitor to publish the final rule in the Federal Register "immediately upon approval of a final rule by a majority of the Board." The Order provided that any concurring or dissenting statements would be published in the Federal Register after publication of the final rule itself, and it also stated that the Order would "constitute the final action of the Board in this matter." All three members voted on this procedural Order by email on December 14 or 15, again a 2-1 vote with Member Hayes dissenting.
• December 15: A fourth draft of the rule was circulated via JCMS. Later that day, an email was sent asking whether Member Hayes wished to include a dissenting statement in the final rule. Member Hayes conveyed that he would not attach any statement to the Final Rule so long as, consistent with the Board's Order, he would be able to add a dissent later on.
• On December 16, the final version of the rule was circulated in JCMS. Both Chairman Pearce and Member Becker voted to approve the rule. As a result, the Solicitor forwarded the rule for publication in the Federal Register that same day.

However, as Judge Boasberg found, Member Hayes never participated in the vote on the rule in its final form:

Hayes did not vote. Nor was he "asked by email or phone to record a final vote in JCMS before or after the Final Rule was modified, approved by Chairman Pearce and Member Becker, and forwarded by the Solicitor for publication on December 16. Hayes has averred that "after he voted against the procedural Order on December 15 and indicated that he would not attach a personal statement to the Final Rule, he gave no thought to whether further action was required on him."

In arguing to the court that there was a quorum, the NLRB asserted that Member Hayes should be considered part of the quorum despite his not having voted on the final rule because Member Hayes:

1. participated in two earlier decisions relating to the final rule's publication; and
2. was "present" for the December 16th vote to adopt the rule.

Judge Boasberg rejected both arguments:

the December 16th decision to adopt the final rule, not the earlier votes, was the relevant agency action. A quorum, accordingly, must have participated in that decision. And although Hayes need not have voted in order to be counted toward the quorum, he may not be counted merely because he was a member of the Board at the time the rule was adopted. More was required.

Specifically, Judge Boasberg found that Member Hayes "simply did not show up - in any literal or even metaphorical sense," and further concluded that Member Hayes did not exercise a "minority veto" by failing to act as the facts established that the entire Board had a "misimpression" as to whether Member Hayes had "effectively indicated his opposition" to the rule.

Accordingly, the irony of the new election rule's defect is that in the Board's apparent zeal to avoid any quorum issues under New Process Steel with Member Becker's term expiring at the end of 2011, the Board created a new New Process Steel procedural defect.

While employers are elated with the decision, it will surely be short lived. We expect that the Board will move efficiently to pass a new version of the election rule, and it will not make the same mistake twice. However, as we opined on this blog yesterday, that sets the stage for the battle over the recess appointments of Members Block, Flynn, and Griffin.

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Quoting Woody Allen in the decision's opening passage, today District Court Judge James Boasberg of the District Court for the District of Columbia granted summary judgment to the U.S. Chamber of Commerce in its lawsuit against the National Labor Relations Board's "quickie" election rule.  The  Board rule, published in the Federal Register on Thursday, December 22, 2011, amended its election case procedures to shorten the time between the filing of a petition and the conduct of a union representation election. The rule went into effect on April 30, 2012.

The Court today, however, ruled that the final rule was promulgated without a proper quorum of three Board Members, and therefore must be set aside as beyond the Board's authority....for now: 

In so doing, however, the Court emphasizes that its ruling need not necessarily spell the end of the final rule for all time. The Court does not reach – and expresses no opinion on – Plaintiffs’ other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful. As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so. In the meantime, though, representation elections will have to continue under the old procedures.

Somewhat interesting to note, the Court states clearly that the Board was denied the authority to act merely by Member Hayes refusal to participate in the rulemaking:

Two members of the Board participated in the decision to adopt the final rule, and two is simply not enough. Member Hayes cannot be counted toward the quorum merely because he held office, and his participation in earlier decisions relating to the drafting of the rule does not suffice. He need not necessarily have voted, but he had to at least show up.

This strikes us as an extension of the Supreme Court's New Process Steel decision, 130 S. Ct. 2635, 2638 (2010), cited here by the parties and the Court.  Only Judge Boasberg's decision specifies that the three required Board Members must not only be properly seated, but also participate in the action for it to pass muster.  Observers will recall that at the time of the rulemaking action, there was considerable speculation as to whether Member Hayes might step down from the Board to prevent it from acting.  As it may turn out, he did not have to.

Initial thoughts about "takeaway":

This decision foreshadows the coming showdown over President Obama's January 2012 "recess" appointments.  Judge Boasberg's decision strongly suggests that if there is an interest in a fully functional National Labor Relations Board, there must be a fully seated Board -- or at least a full quorum of three like-minded Members who will participate in actions.

Finally, it is unclear whether the decision truly opens the door to allow an obstinate Member to derail the Board by perpetually ignoring Board overtures to act.  On the facts of this case, the Judge simply found there was no quorum:

Had someone reached out to him to ask for a response, as is the agency’s usual practice where a member has not voted, or had a substantial amount of time passed following the rule’s circulation, moreover, it would have been a closer case. But none of that happened here. In our prior world of in-person meetings, Hayes’s actions are the equivalent of failing to attend, whether because he was unaware of the meeting or for any intentional reason. In any event, his failure to be present or participate means that only two members voted, and the rule was then sent for publication that very day.

For now, the Board's prior rules will remain in place, and parties should expect the current median of 38 days to remain the approximate amount of time between the filing of a petition and an election.  It does, however, raise the interesting question of the extent to which elements of the Acting General Counsel's new guidelines -- designed to expedite election processing consistent with the rule -- will survive as an administrative matter on the regional level. 

Stay tuned...

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On Monday, April 30, 2012, the National Labor Relations Board's new election rules took effect shortening the time between the filing of a petition and the holding of a union representation election. Specifically, the new rules provide that:

a) hearing officers have greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”;

b) hearing officers have the discretion to deny requests by parties to submit post-hearing briefs;

c) the parties no longer have the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election;

d) the 25-day period between the issuance of a decision and direction of election by a regional director and the holding of an election is eliminated;

e) a party’s ability to seek special permission to appeal a hearing officer ruling to the Board is clarified; and

f) the Board has the discretion to refuse to review a regional director’s resolution of post-election disputes.

In addition to the new rules, the Acting General Counsel for the NLRB recently issued a memorandum outlining the new election procedures as well as establishing new "best practices" not contemplated in the Board's new election rules. These new "best practices" are also designed to shorten the time between the filing of a petition and the election. As a result, elections can be held as soon as 18 to 24 days after the petition is filed -- potentially even sooner.

The new election rules were published on December 22, 2011, but Member Brian Hayes asserts that the Board's majority intentionally:

breach[ed] the Board's internal operating rule and, for the first time in the history of this agency, [did not] allow the requisite time for preparing or circulating a dissent.

On April 30, 2012, the NLRB finally published Hayes dissent, in which he states that:

It is my personal view, shared by many of the thousands of commenters to the [rule], that my colleagues' Rule contravenes the Act and the Constitution. In whole and in several parts, in substance and in the process used to adopt it, it also reflects arbitrary and capricious decisionmaking that requires invalidation on judicial review. Finally, as with recent adjudicatory actions, this rulemaking action represents an abdication of the Board's representation case duties and reflects a compulsive effort by my colleagues to favor union organization over all opposition, no matter its legitimacy or statutory protection.

In addition to Hayes' dissent, the NLRB's new election procedure has faced both legislative and legal challenges. Late last year, the House of Representatives passed John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094), which would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. The Senate recently voted on a Resolution of Disapproval aimed at prohibiting the NLRB from implementing the new election rules. However, the Senate rejected the resolution by a vote of 54-45.

A lawsuit filed by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace is pending in federal court challenging the new election rules. They argue that the Board's new rules are invalid because:

• two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
• the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
• the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

In February 2012, the parties filed cross motions for summary judgment, and the federal district court will issue its ruling on the merits by May 15, 2012. At least until then, the new rules remain in effect as the court has refused to issue a stay pending its ruling.

Employers must continue to monitor developments. In the event the new rules are upheld, employers will have considerably less time to talk to employees regarding the issue of union representation before an election once a union petition is filed.  Employers will need to assess and adjust perspectives, operational strategies and communications accordingly.

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In the memorandum issued by Acting General Counsel Lafe Solomon yesterday, not only does he outline the new "quickie" election procedures set to go into effect on Monday, April 30, but he sets new "best practices" not contemplated in the Board's new election rules.

The Acting General Counsel acknowledges in the memorandum that the Board's "final rule does not establish new timeframes for conducting hearings or elections," and further explains that: 

This memorandum does not set forth new time goals for the issuance of decisions or the conduct of elections. Regions should continue to process representation petitions and conduct elections as expeditiously as possible, consistent with our statutory mission.

Despite this acknowledgement, the Acting General Counsel takes steps to shorten the time for processing election petitions.

First, despite the fact that the current rules specify that hearings generally must be conducted within 14 days from the date of filing, the Acting General Counsel instructs all Regions to schedule the hearing to start seven (7) days after the petition is filed:

The revised rules adopted by the Board do not specify how soon the pre-election hearing should be held. Currently, most regions issue the Notice of Representation Hearing (NOH) on the day the petition is filed and schedule the initial hearing for 7 to 10 days after the petition is filed. In the interest of having uniform and predictable representation case processes throughout the field, I have adopted the practice of some regions to normally issue the NOH on the day the petition is filed, and schedule the hearing 7 days (or 5 working days) from the date of issuance of the NOH.

Parties can still request an extension of time not to exceed 14 days, absent extraordinary circumstances, from the date of filing of the petition. However, given the Acting General Counsel's and the Board's emphasis on eliminating "unnecessary delay," the Regions might feel compelled to increase their practice of imposing conditions on any grant of a postponement as set forth in the notice of hearing form (NLRB -4339). Specifically, Form NLRB-4339 states that an approval of a postponement may be conditioned on one or more of the following:

(1) The agreement of all parties to participate at a conference to be held at the regional office or, alternatively at the discretion of the regional director, a teleconference at least one full day before the rescheduled hearing date;

(2) Agreement by the requestor that if briefs are permitted, extensions of time for filing of briefs will not be sought or granted; and/or

(3) The requestor’s execution of stipulations on matters not in dispute, e.g., jurisdiction, labor organization status, appropriate unit.

Second, the Acting General Counsel now requires all Regions to advise all parties entitled to an Excelsior (voter eligibility) list that they have the right to waive the opportunity to have the list for 10 days before the election occurs. Accordingly, if a union wants to expedite the election, it can waive the 10 day period and have it set within a few days after the employer is required to produce the Excelsior list. Under such a scenario, an election could be held less than 20 days after the petition is filed.

Although a challenge to the Board's new election rules remains pending, absent any intervening action, the new rules will become effective on Monday, April 30, 2012.

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Yesterday and today the Senate debated and voted on S.J. Res 36, a Resolution of Disapproval aimed at prohibiting the National Labor Relations Board from implementing its new election rules that will shorten the time between the filing of an NLRB petition and the conduct of a union representation election. The Senate rejected the resolution by a vote of 54-45. President Obama threatened to veto the resolution if it passed the Senate.

After the vote, Senator Michael Enzi (R-WY), who introduced the resolution, stated:

This vote was an important opportunity to send a message to the NLRB that their job is not to tip the scale in favor of one party or another, but to fairly resolve disputes and conduct secret ballot elections. The NLRB’s duty as a federal agency is to be the referee and decide what is fair for the parties involved, based on the clear facts of the case.  The NLRB will be tipping the scale with this ambush elections rule, which will go into effect next week.

Meanwhile, the UFCW issued a press release celebrating the outcome while asserting a need for additional measures to make organizing easier: 

This NLRB rule is a modest step toward improving the rights of workers to organize. It will help eliminate some of the unnecessary delays and frivolous lawsuits that prevent workers from receiving a fair and timely election. But make no mistake, the NLRB union election process still overwhelmingly favors employers who control workers' schedules and opportunities for raises and promotions. Majority sign-up, binding arbitration, and true employer neutrality are all still needed to make the system even remotely fair.

As such, labor unions are not completely satisfied with the new election rules and will continue their push for passage of the Employee Free Choice Act (EFCA). 

The NLRB's new election rules will become effective April 30, 2012 barring a ruling by the court in the U.S. Chamber of Commerce's lawsuit  against the NLRB. Both sides have filed dueling summary judgment motions and are awaiting a ruling from the district court.

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Earlier this week, one new National Labor Relations Board rule was put on indefinite hold.  Now Senate Republicans are taking aim at another Board initiative set to go into effect on April 30, 2012 -- the rule designed to expedite union representation elections.  Earlier today, Senator Mike Enzi (R-WY), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee announced that next week the Senate will debate the the resolution of disapproval condemning the Board's rule.

The measure, S.J. Res 36, was introduced earlier this year by Sen. Enzi and forty-four other Senators under the Congressional Review Act (CRA).  Its target is the rule, announced by the Board just before expiration of former Member Craig Becker's term in December of 2011, which would shorten the time between the filing of an NLRB petition and the conduct of a union representation election.  Sen. Enzi announced that the resolution has been placed on the Senate legislative calendar and that debate on the resolution is expected on Monday and Tuesday of next week.  Of the Board's rule, Sen. Enzi said:

This rule was rushed into place by an agency that is bound and determined to stack the odds against American employers. ... Despite the fact that unemployment has remained above 8 percent for the past three years, and with small business growth being the most important factor in reversing the lackluster economy, the NLRB has chosen to impose new rules to aid big labor at the expense of employees, small business employers and the jobs they would create.

The CRA resolution is not the only measure aimed at blocking implementation of the Board's rule.  Months ago, Rep. John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed the House by a vote of 235-188.  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights eliminated by the Board rule.  There is also litigation pending and both the U.S. Chamber of Commerce and the Board have filed dueling summary judgment motions which should be decided fairly soon.

Employers must stay tuned to developments.  Absent successful challenge by any one of these various approaches, the Board's new rule will go into effect April 30, 2012. 

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Back on March 1, the National Association of Manufacturers asked "Where is the NLRB General Counsel Report [for FY 2011]?"  On its Shopfloor blog, NAM noted:

...Over the last ten years, the latest the report has been released was February 4th. Fiscal year 2012 began on October 1, 2011 and is nearly at its half-way point. Yet, the NLRB General Counsel has not let us know how the Board performed the year before.

Late last week, the Board answered, releasing  its annual "Summary of Activities" for fiscal year 2011.  The report focuses mainly on the statistical accomplishments of the Board for FY 2011.  As summarized by the report's introduction, elements of the report include that:

• 91.7% of all initial representation elections were held within 56 days of the filing of the petition;
• Regional offices settled 93% of the unfair labor practice charges that were deemed by the regional office to have merit
• Regional offices won in whole or in part 87% of the unfair labor practice and compliance cases before administrative law judges
• The NLRA’s case intake dropped by 5.9% overall from FY 2010, which represents a decrease of 5.1% in unfair labor practice charges and a decrease of 12.2% in representation cases.
• Case inventory rose from 4,063 cases in FY 2010 to 4,421 cases in FY 2011, an increase of 8.8%.

In his introductory note to Board staff, the Acting GC described 2011 as "another successful fiscal year enforcing the National Labor Relations Act," and "another year of excellent casehandling performance." 

For more perspective on the specific elements of the Board's 2011 performance, please review our annual report "Labor Law 2011: A Year in Review."

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Forty-four senators including Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, today introduced a Resolution of Disapproval (S.J. Res 36) challenging the National Labor Relations Board's new rules expediting union representation elections. Passage of the Resolution, submitted under the Congressional Review Act (CRA), would allow Congress to stop implementation of the rule.

The Resolution reads, simply:

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That Congress disapproves the rule submitted by the National Labor Relations Board relating to representation election procedures (published at 76 Fed. Reg. 80138 (December 22, 2011)), and such rule shall have no force or effect. 

Senator Enzi had promised to file this Resolution following the Board's December announcement of the Final Rule.  Today, he said:

“This rule will make a fair system less fair for one side, and is being rushed into effect over tremendous objections. This is why I am joining with my fellow senators to stop this rule from going into effect and ambushing the small business job creators we need for our economic recovery.”

Expect a similar Resolution to be introduced in the House, where if put to a vote, it should pass with the Republican majority handily.  More interestingly, a CRA resolution of disapproval cannot be filibustered.  As it needs only a simple majority in the Senate to pass if acted upon during a 60-day window, it may come within a few votes -- as the current 53-47 breakdown between the caucuses.  This may be expected to put some pressure on moderate Democrats facing re-election this year in more conservative districts.  In any event, the Resolution would still be subject to certain veto by the President. 

Both the U.S. Chamber of Commerce and the Board have also recently filed dueling summary judgment motions in the Chamber's litigation to reverse the rule.

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The House Education and the Workforce Committee held a hearing on President Obama's January 4, 2012 "recess" appointments to the National Labor Relations Board. The hearing is the second of three scheduled on this issue -- as the House Oversight and Government Reform Committee held a hearing last week, and the Judiciary Committee will hold one next.

Chairman John Kline (R-MN) opened the hearing asserting that the President's actions created a "constitutional crisis" as the Senate was in pro forma session at the time:

Thanks to the president’s action, three scarcely known individuals are now empowered to dramatically transform our nation’s workforce. The highly controversial nature of the appointments guarantees the rules and decisions the new board members adopt will be constitutionally suspect and legally challenged. Even the president’s own Justice Department, in what I would characterize as an understatement of the gravity of the situation, noted the issues surrounding these appointments “create some litigation risk.”
Make no mistake, every action taken by the board will be tainted, creating greater uncertainty for employers and additional costs for taxpayers.

House Democrats argued the recess appointments were necessary to overcome obstruction and to keep the government functioning. Rep. George Miller (D-CA), the committee’s ranking Democrat, declared the proceeding wasteful: "Today is just another legislative day dedicated to divisive issues."
Per the Wall Street Journal's Melanie Trottman:

Mr. Miller said it will likely be the Supreme Court, not Congress, that decides whether the recess appointments violated the Constitution, and the committee should be focusing its efforts on other issues such as job creation instead of having its sixth hearing “attacking” the NLRB.

Whether or not the three appointments are legitimate is a fundamental issue with fairly pressing consequences. If they are not, under the Supreme Court's 2010 New Process Steel decision, the Board lacks a requisite quorum for official action. The Board would be precluded from issuing Orders in cases before it, or from further rule-making activity. Near the top of the Board's list of priorities is to implement the rest of its proposed rules to expedite union representation elections. Several organizations have filed suit challenging the President's appointments, but Board Chairman Mark Gaston Pearce has indicated unequivocally that the Board will proceed to consider all remaining elements of the changes proposed last June. Chairman Pearce recently told the Associated Press:

“We presume the constitutionality of the president’s appointments and we go forward based on that understanding.”

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The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace last week filed a motion seeking summary judgment in their lawsuit against the National Labor Relations Board (NLRB) challenging the Board’s December 22, 2011 rule intended to expedite the union representation election process. The Chamber's lawsuit, filed in December and recently amended, argues that:

...the blatantly partisan purpose of this rule is to ensure that employers have no time to talk to their workers about unionizing, and that the only information workers will get will come from the union. According to the Chamber’s complaint, the rule violates the National Labor Relations Act, the Administrative Procedure Act, the Regulatory Flexibility Act, and free speech and due process constitutional rights.

The Chamber's February 3, 2012 motion, seeking summary judgment invalidating the rule, argues that the Board's rulemaking process was flawed in that:

• two Board members denied the third member the opportunity to fully participate in the rulemaking, thus denying the Board an official quorum;
• the actions taken to hasten adoption of the rule violated the Administrative Procedure Act (APA) by arbitrarily and capriciously failing to follow well-established Board practice; and
• the new rule is substantively inconsistent with Sections 3 and 9 of the National Labor Relations Act.

On the same day, the Board also filed for summary judgment dismissing the suit. The Board's brief argues that the Chamber's suit is not ripe for adjudication; the agency is entitled to deference in rulemaking; the rule is consistent with all substantive provisions of the Act; and the Board "fully considered and appropriately rejected" all the Chamber's substantive arguments against the rule in the course of its rulemaking process -- which process was not "totally unjustified".

Employers must follow closely this litigation, and the other developments currently unfolding, as the implementation of this rule will change significantly the way representation proceedings are processed and the timeframe within which they will have to respond to them. We will post additional information here on the case and the broader issue as it becomes available.

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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National Journal reports that House and Senate leaders have announced an agreement on the long-awaited reauthorization of the Federal Aviation Administration (FAA).  The deal includes Republicans backing down on their effort to reverse the May 2010 rule issued by the National Mediation Board (NMB) which changed the 75 year-old method for counting votes in union representation elections under the Railway Labor Act (RLA):

Republican leaders agreed to remove the offending language in the FAA bill that would have rescinded a National Mediation Board rule set under the Obama administration that makes it easier for rail and aviation workers to unionize. The remaining disputes between Republicans and Democrats on the measure have been worked out in a gentlemen's agreement among congressional transportation gurus.

In exchange for Republicans dropping the NMB rule recission, Democrats have agreed to include a provision that would raise the threshold for rail and aviation workers expressing interest in forming a union from 35 percent to 50 percent. This would mark the first time that an FAA reauthorization included any NMB changes, which is likely to make organized labor uncomfortable. But it also appeases Republicans who were angered by the original Obama administration rule that nonvoting aviation and rail workers do not count as "no" votes in unionization elections.

Lawmakers also have agreed to public hearings for all substantial NMB rule-making and tweaks to the manner in which runoff elections will be held. (The procedural change will make it easier for a "no union" option to win.) The deal also includes several oversight reports from the Government Accountability Office.

Our previous coverage of the issue:

• "National Mediation Board (NMB) Changes Union Election Rules, Easing Unionization Process" -- May 12, 2010

• "Airlines Sue To Block Easier RLA Unionization Rules" -- May 19, 2010

• "National Mediation Board Issues Revised Representation Manual" -- August 24, 2010

• "Georgia Rep Introduces Bill to Reverse NMB Rule on Union Elections" -- February 14, 2011

• "Rep. Issa (R-CA) Seeks Information From National Mediation Board Regarding "Radical" Rule Change" -- May 19, 2011

• "FAA Furlough Likely to Continue for Weeks; Parties in Congress Differ on Impact of NMB Union Election Rule" -- August 3, 2011

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The National Labor Relations Board announced today that it has adopted a final rule amending its election case procedures to shorten the time between the filing of a petition and the conduct of an election. The rule will be published in the Federal Register on Thursday, December 22, and is due to take effect on April 30, 2012.

The Board asserts that under the new rule:

...regional hearings will be expressly limited to issues relevant to the question of whether an election should be conducted. The hearing officer will have the authority to limit testimony to relevant issues, and to decide whether or not to accept post-hearing briefs.

Also, all appeals of regional director decisions to the Board will be consolidated into a single post-election request for review. Parties can currently appeal regional director decisions to the Board at multiple stages in the process.

In addition, the rule makes all Board review of Regional Directors’ decisions discretionary, leaving more final decisions in the hands of career civil servants with long experience supervising elections.

There have been various attempts by lawmakers to undo this rule, including John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) which passed by a vote of 235-188 late last month.  That bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights. 

But it is not just the substance of the changes that opponents question.  Days before the NLRB held a unique "public" session to vote upon the proposed rule changes, Member Brian Hayes sent a highly critical letter to the House Committee on Education and the Workforce.  Member Hayes accused the Board majority of intentionally:

breach[ing] the Board’s internal operating rule and, for the first time in the history of this agency, not allow[ing] the requisite time for preparing or circulating a dissent. 

This afternoon, hours after the Board announcement of the final rule, Senator Mike Enzi (R-Wyo.), Ranking Member on the Senate Health, Education, Labor and Pensions (HELP) Committee, asserted that he would challenge the Board's actions:  

The rule issued today by the NLRB will allow union bosses to ambush employers with union elections before employers have a fair chance to learn their rights and explain their views to employees, as required by law.  I plan to lead the fight against this onerous rule by introducing a resolution of disapproval under the Congressional Review Act. 

The Congressional Review Act (CRA) allows Congress to review every new federal regulation issued by the government agencies and, by passage of a joint resolution, overrule a regulation.  According to Senator Enzi's office, a resolution of disapproval introduced under the CRA cannot be filibustered and needs only a simple majority in the Senate to pass if acted upon during a 60-day window.

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On Wednesday, the NLRB voted 2-to-1 to approve a resolution to amend the rules and regulations related to its election process. Chairman Mark Pearce and Member Craig Becker voted in favor of the changes and Member Brian Hayes voted against them. The amendments that passed were trimmed from a more comprehensive set of proposed changes published in the Federal Register on June 22, 2011. The approved changes are intended to reduce litigation in election cases and will also significantly shorten the time between any pre-election hearing and the election date.

The approved changes will include:

a) giving hearing officers greater discretion to limit the evidence presented at pre-election hearings to evidence that is “relevant to a genuine issue of fact material to whether a question of representation exists”

b) giving hearing officers the discretion to deny requests by parties to submit post-hearing briefs

c) denying the parties the right to file requests for review with the Board challenging the viability of a regional director’s decision and direction of election until after the election

d) eliminating the 25 day period between the issuance of a decision and direction of election by a regional director and the holding of an election

e) clarifying the rules regarding a party’s ability to seek special permission to appeal a hearing officer ruling to the Board

f) giving the Board the discretion to refuse to review a regional director’s resolution of post-election disputes

The Board did not release the final rules that will amend or replace the existing language in the regulations. It also did not indicate when the new rules would become effective. Unless the language is already written and the date is already set, it is reasonable to believe both will be impacted when Member Becker’s recess appointment expires at the end of this month, leaving just two members on the Board.

At roughly the same time as the Board action, Congress passed a bill designed to undo parts of the proposed rule changes.  John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094) passed by a vote of 235-188.  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

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In advance of today's 2:30 p.m. meeting of the National Labor Relations Board to vote on rule changes to expedite union representation elections, we revisited the redlined Rules previously issued by the Board.  Following the release of today's proposed Resolution by the Chairman, we have highlighted in yellow the portions of these changes which the Board will consider today.  (The blue and green annotations are the initial changes to the R&R proposed by the Board's June 2011 NPRM.)

But while the Board addresses its Resolution today, Congress too will be looking at this issue.  The House plans a floor vote this afternoon on John Kline's (R-MN) "Workforce Democracy and Fairness Act" (H.R. 3094).  The bill would guarantee that no representation election is held within 35 days after the filing of a petition, provide for a two-week waiting period before a hearing could be held, and ensure certain preliminary appeal rights.

As noted yesterday, it will be an interesting day at the Board.  We will provide a recap of the day's developments later this evening.

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When we reported yesterday that the National Labor Relations Board announced it had scheduled a November 30th vote regarding "a small number" of the changes to its election procedures that the Board proposed back in June, we speculated that current Board dynamics might prevent the Board from adopting a wide range of the controversial measures included in the proposed rule.  Not so fast, it would seem...

In a letter sent yesterday by lone Republican Board Member Brian Hayes to Chairman John Kline (R-MN) of the House Committee on Education and the Workforce, Hayes expressed his serious concerns and more disconcerting circumstances than might have been anticipated:

My colleagues are committed to issuing a final R Case Rule before Member Becker’s recess appointment expires at the end of the current Congressional session.  …  I was further advised that in the event I did not agree with the final R Case Rule, it would, nonetheless, be approved and published based on their two-member vote.  Moreover, if, as will necessarily be the case, I am not afforded the requisite opportunity to review and draft a dissent to the rule, I was advised that I would be limited to doing so after publication of the rule.  … [T]hese actions would contravene long-standing Board tradition and the Board’s own operating rules.   These rules and traditions have been established to protect the legitimacy of the Board.  They cannot, in my view, simply be case aside in pursuit of a singular policy agenda without doing irreparable harm to the Board’s legitimacy.

This reported approach resembles that taken by the National Mediation Board, when in early 2010, following the appointment of a former union president to the Board, the agency excluded dissenting voices from the process of revising a decades-old election rule.  That change too was designed to facilitate private sector union organizing.  Member Hayes adds the troubling suggestion that his colleagues at the NLRB might not be simply considering this approach for the passage of this Proposed Rule, but for a variety of other pending Board matters as well:

…since Member Becker’s recess appointment will expire in less than 90 days, it is quite clear that the two Board members nevertheless intend to breach the Board’s internal operating rule and, for the first time in the history of this agency, not allow the requisite time for preparing or circulating a dissent.  Indeed, as noted above, I have been specifically advised of this fact both with respect to publication or a final rule and with respect to a number of significant cases currently pending before the Board.

Finally, his reference to  the "Workforce Democracy and Fairness Act" (H.R. 3094) in his letter's conclusion, suggests that the two-Member bloc may intend to pass some of the more radical changes included in the Proposed Rule after all:

...I note that my colleagues’ rush to final rulemaking judgment is taken in the face of active consideration of H.R. 3094, provisions of which are in direct conflict with the Board’s proposed Rule.  Although I make no comment concerning the merits of this legislative proposal, I believe its pendency provides yet another reason why my two colleagues should suspend their rulemaking efforts.

Circulation of this letter is certain to revive some of the calls for Member Hayes to step down in advance of the November 30th vote in order to deny the Board a quorum to act.  The legal reasoning laid out by Member Hayes in opposition to the Board's current course might suggest he thinks such drastic measures are unnecessary to prevent promulgation of this rule.  But this should make for an interesting next ten days at the NLRB.

More commentary and resources:

• "Labor Board May Speed Union Votes" -- New York Times
• "NLRB Expedites Action on Ambush Elections" -- House Committee on Education and the Workforce
• "NLRB Vote on Portions of Proposed Election Rule Imminent" -- Littler's Labor Relations Counsel blog
• "House Advances Bill Overturning NLRB Union Rule" -- The Hill's Floor Action blog

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The National Labor Relations Board announced today that it has scheduled a vote on whether to adopt "a small number" of the changes to its election procedures that the Board proposed back in June.  According to the Board, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing."  The proposed changes include:

• shortening the period between the filing of a petition and the conduct of a representation period by days, if not weeks;
• deferring most voting/bargaining unit issues until after the election;
• eliminating the parties' ability to request review of a Regional Director's decision prior to the election;
• expediting the production of a list of employees and their contact information to the union, including phone numbers and email addresses; and
• allowing for the filing of election petitions and posting of notices electronically.

The Board received more than 65,000 written comments on the proposal and heard testimony from 66 speakers at a two-day hearing in July.  Senator Jim DeMint (R-SC) soon thereafter introduced “The Fair Representation in Elections Act of 2011” (S. 1425), which would guarantee that no representation election is held within forty (40) days after the filing of a petition, and until the Regional Director has resolved all jurisdictional, unit determination and eligibility issues.  Last month, the House Committee on Education and the Workforce voted to send Committee Chairman John Kline's (R-MN) similar bill, the "Workforce Democracy and Fairness Act" (H.R. 3094) bill to the floor.

In today's announcement, the Board indicates:

in light of the possibility that the Board will lose a quorum at the end of the current congressional session, Board Chairman Mark Pearce will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.

The Chairman and the Board's other two Members will discuss and vote on a resolution to accept the Chairman’s proposals, proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.

One might expect the Board to limit its consideration to the less drastic and controversial elements of its proposals, on which there appears to be unanimous consensus among the Board's three Members.  A dissenting Board Member could very likely prevent anything from being passed by simply stepping down prior to a vote, thereby denying the Board a quorum under the holding of the Supreme Court's decision in New Process Steel L.P. v. National Labor Relations Board, 08-1457.

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Late last week, Senator Johnny Isakson (R-GA) introduced the Representation Fairness Restoration Act (S. 1843) -- legislation designed to reverse the National Labor Relations Board's August 26, 2011 decision in the Specialty Healthcare case. In that decision, the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the NLRB has clearly signaled that it now endorses Member Becker’s long held belief that smaller units -- such as units that consist of only one department, or perhaps even one job classification -- should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.  Sen. Isakson's legislation would reinstate the long-standing standard for determining which employees make up an appropriate bargaining unit for the purposes of the NLRA.

The text of the bill is not yet available online, but more commentary is available:

• "Mini-Unions: Isakson is Right" - Savannah Morning News
• "Senate Bill Would Nullify Specialty Healthcare Decision" -- Littler's Labor Relations Counsel
• "RILA Welcomes Bill to Reverse NLRB Decision in Specialty Healthcare" -- Retail Industry Leaders Association

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The Department of Defense, General Services Administration, and NASA have published a Final Rule in the Federal Register to implement Executive Order 13494, "Economy in Government Contracting."  The Order, one of three Executive Orders issued by President Obama on January 30, 2009 regarding labor relations, declared the costs of any activities undertaken by federal contractors to persuade employees to choose or decline union representation to be ineligible for government reimbursement.  Following review of public comments, the agencies finalized the April 14, 2010 proposed rule with "just one minor editorial change" to FAR 31.205-21, the cost principle addressing labor relations costs:

To implement the requirements of the E.O., DoD, GSA, and  NASA issued a proposed rule that would amend this cost principle by adding a new paragraph addressing the handling of persuader activities--that is, activity involving the persuading of employees to exercise or not exercise their rights to organize and bargain collectively. By doing so, the proposed rule differentiated the handling of costs incurred through persuader activities, which are unallowable, from those incurred in maintaining satisfactory labor relations, which remain allowable.

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NLRB Chair Wilma Liebman used her last day in office to help Member Becker realize his long held dream that unions should be able to organize sub-units of an employer -- such as employees of one department -- as opposed to an entire facility. In Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011), the Board overruled 20 years of practice regarding how it determines the "appropriate unit" in non-acute health care facilities.  More importantly, however, the NLRB has clearly signaled that it now endorses Member Becker’s long held belief that smaller units -- such as units that consist of only one department, or perhaps even one job classification -- should be permitted, rather than the current NLRB preference of favoring “wall to wall” units.

Specialty Healthcare involved a non-acute care nursing home.  The Regional Director certified that the petitioned for unit of full and part time CNA’s (certified nursing assistants) was an appropriate unit for an election.  The Employer filed a request for review.  In granting the request, the Board also made an unprecedented request that the parties address eight specific questions, including experiences under the Board’s 1991 decision in Park Manor Care Center, 305 NLRB 871.  This request was particularly surprising given that the employer had not asked for Board to re-visit that decision in connection with its request for review.  More troubling, however, was the Board’s request that the parties also address whether:

the Board [should] find a proposed unit appropriate if the employees in the proposed unit are ‘readily identifiable as a group whose similarity of functions and skills create a community of interest? 

In other words, should the Board approve smaller units for distinct groups of employees?

The Board has now answered this final question with a resounding “yes.”

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As Chairman Wilma Liebman’s term wound down to a close, late last week, the National Labor Relations Board issued a number of significant decisions reversing Board decisions from earlier administrations. Two of these -- Lamon’s Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011) and UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011) -- make it more difficult for employees to challenge a union’s status as their exclusive bargaining representative in the workplace.

A year after granting review and inviting briefs, in Lamons Gasket Co., the Board reversed the decision of the Board in Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), holding that a decertification petition will be barred “for a reasonable period of time after voluntary recognition.”   In addition, the Board clarified the standard for determining a “reasonable period of time” in connection with this analysis. 

In Dana Corp.,, the Board modified its “recognition-bar doctrine” to hold that an employer’s voluntary recognition of a union bargaining representative would not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) could file a petition soon after an employer voluntarily recognized a union, and in a departure from its past practice, the Board would not dismiss the petition as barred. Following the 45 day period, the recognized union would still enjoy a presumption of majority status for a "reasonable period of time.”

Regarding the 2007 decision, the Lamon’s Gasket majority declared:

[T]he extraordinary process established in Dana was, fundamentally, grounded on a suspicion that the employee choice which must precede any voluntary recognition is often not free and uncoerced, despite the law’s requirement that it be so. The evidence now before us as a result of administering the Dana decision during the past 4 years demonstrates that the suspicion underlying the decision was unfounded. Without an adequate foundation, Dana thus imposed an extraordinary notice requirement, informing employees only of their right to reconsider their choice to be represented, under a statute commanding that the Board remain strictly neutral in relation to that choice.

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Between September 13 and October 4, 2010, the National Labor Relations Board conducted the largest mail ballot election in its history, among approximately 43,000 California employees of Kaiser Permanente. The election, to determine whether whether the employees wanted to remain represented by SEIU-UHW, to select a different union, or to become unrepresented, saw over 30,000 of the eligible employees cast votes.  A majority of voters – over 18,000 -- cast ballots in favor of continued SEIU representation.

The union which lost that election, National United Healthcare Workers (NUHW), filed 118 objections.  This past Wednesday, the Board ordered the historic election to be rerun, following a Hearing Officer’s recommendations that the original results be set aside due to objectionable conduct by the employer and the SEIU-UHW.

According to the Board’s Order, SEIU-UHW and Kaiser waived their rights to file exceptions to the Hearing Officer’s report and filed a joint motion with the Board agreeing to the new election.  NUHW opposed that request – perhaps trying to buy more time to build support. The Order by Chairman Wilma B. Liebman and Members Brian Hayes and Mark Gaston Pearce -- with Member Craig Becker recused on account of SEIU’s involvement -- granted the joint motion and remanded the case to the Oakland region for appropriate action, including the scheduling of a new election.

More coverage:

• "NLRB orders rerun of union election for 43,000 California health care workers" -- WaPo
• "Board orders a repeat of California union election" -- NY Times
• "NLRB orders rerun of Kaiser Permanente union vote in California" -- Bloomberg
• "Unions set for new battle in turf war" -- WSJ

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Employees at the EBI, LLC plant in Danville, Virginia voted against union representation by the Steelworkers in an NLRB-supervised election conducted earlier this week.  The tally of ballots indicated a 281-118 vote rejection of the union. The employer manufactures products for IKEA.

This was the second NLRB election at an IKEA-related employer in Danville in the past month. Employees at a nearby Swedwood plant voted 221-69 in favor of union representation by the International Association of Machinists on July 27.

In the case of Swedwood plant, at least, there was evidence of a significant evolving trend where the American operations of European companies are pressured to remain "neutral" in connection with union organizing drives.  A Bloomberg news report put it this way:

The Danville union drive was followed by the media in Sweden, where many company workers are union members. The largest daily newspaper in Stockholm wrote that the company was behaving in an “un-Swedish way.”

Labor Notes' coverage of the election lists effort by international unions to apply pressure to organize German-owned Volkswagen, Deutsche Telekom's T-Mobile, and French-owned food services company Sodexo, among others.  Regarding the efforts of the IAM's Woodworking unit in Danville, the author notes:

...BWI took on the Danville union effort as an international campaign, calling for a boycott, sponsoring protests from Germany to Hong Kong, and at one point clogging Ikea corporate inboxes with 100,000 emails. BWI has member unions in 127 countries.

European companies with American operations should not underestimate the type of pressure UNI and the other international labor organizations are able to bring to bear on these issues in the U.S.  As the successful union organizer at this Danville plant noted:

“Virginia has the third lowest union density in any state in the nation.... If we can win in Virginia, we can win elsewhere.”

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Congress has adjourned for up to five weeks without passing a bill to extend funding for the Federal Aviation Administration, resulting in "unprecedented" furloughs due to a partial shutdown of agency operations.  Approximately 4,000 FAA employees are out of work following the July 22 failure of Congress to pass at least a temporary extension of funding for the agency. The furlough impacts engineering and electronics technicians, computer and logistics specialists, and support staff, among other workers.

At the center of the dispute is the Airport and Airway Extension Act of 2011, Part IV (H.R. 2553) which was passed by the House on July 20, 2011 by a mostly party-line vote, 243-177.  The heart of the bill, introduced by Rep. John Mica (R-FL), is a fairly standard extension of funding for the FAA, the likes of which has been passed numerous times before throughout recent history.  This latest version, however, which was rebuffed by the Senate prior to the adjournment, contains a provision seeking to significantly limit the agency's Essential Air Service Program.  House Republicans view the EAS as a costly pork-barrel program.

Some Senators, however, argue that the GOP insistence on these cuts in the short-term funding bill is retribution for the Democrats' objection to earlier versions of the bill which included Republican efforts to reverse the National Mediation Board's new rules facilitating union organizing for airline employees.  Regular readers of this blog know that last May, the NMB announced that it was changing a decades-old rule regarding the way votes are counted in union representation elections under the Railway Labor Act (RLA).  On May 17, 2010, an association of airlines filed suit to block the rule, but that challenge failed and the rule became effective as of July 1, 2010. 

In February 2011, Rep. Phil Gingrey (R-GA) introduced legislation to reverse the rule change -- the "Restoring Democracy in the Workplace Act" (H.R. 548).  The bill went nowhere beyond committee.  Soon thereafter, Rep. Mica introduced a long-term funding extension bill for the FAA (H.R. 658) -- Section 903 provided for repeal of the new NMB rule.  The bill passed the House, but stalled in the Senate -- leading to passage of a series of short-term extensions, until now.

Rep. Mica has issued a statement suggesting that the NMB issue is a red-herring in the present debate:

FACT: Senate Democrats are also arguing that the House-passed extension is about a labor provision, but the fact is there is no labor provision in the extension.

Whether the Congress reconvenes ahead of schedule to resolve their differences and fund the FAA remains to be seen -- as will the extent to which, if any, the disputed NMB rule ultimately plays a part.

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Just over a week after the National Labor Relations Board held two days of hearings on its proposed rule to shorten the time between the filing of a petition and the conduct of a representation election, Senator Jim DeMint (R-SC) introduced “The Fair Representation in Elections Act of 2011” (S. 1425). The bill would guarantee that no representation election is held within forty (40) days after the filing of a petition, and until the Regional Director has resolved all jurisdictional, unit determination and eligibility issues.

When the NLRB announced its intent to change election procedures earlier this year, it claimed that "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, as many speakers opined during the July 18 and 19 hearings, the proposed amendments to the NLRB's Rules and Regulations will also have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

At least six (6) other Republican Senators joined as original co-sponsors of DeMint's bill which is obviously directly at odds with the Board's efforts in this area.

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Monday and Tuesday next week, the National Labor Relations Board will hold its public hearings on its proposed rulemaking to shorten the time between the filing of representation petitions and the resulting elections.  Earlier, the Board announced the line-up of speakers selected to speak during the two day hearings.  The impressive list of speakers includes numerous former Board members, prominent labor attorneys, union officials and employer representatives.  The two Tuesday sessions conclude with remarks by Professors Dorian Warren and Kate Bronfenbrenner, respectively -- recent publishers of a study widely cited in support of the Board's efforts here.

The hearing will be webcast in its entirety at the Board's website.

More resources and commentary:

• "Time to Cut, Cap & Balance National Labor Relations Board" -- Bret Jacobson op-ed
• "NLRB's Proposed Rules Would Speed Up Union Election Process" -- Day Pitney on Martindale.com
• "Congressional hearing finds fault with proposed rule to shorten NLRB election period" -- Wolters Kluwer

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When the National Labor Relations Board announced its proposed rulemaking to shorten the time between the filing of representation petitions and the resulting elections, it announced that it would hold public hearings on July 18th (and possibly 19th).  It allowed interested parties a few days to request participation.  A number of public officials and employer groups asked that the Board extend the time for the submission of written comments and schedule hearings in various locations following those submissions.

On Friday, the Board denied those requests, announcing that the previously announced time limits would stand:

The Board has received requests seeking, inter alia, to postpone the public meeting.  These requests have been made by Senators Enzi, Hatch and Isakson, by the United States Chamber of Commerce (joined by other organizations) and by the Workforce Fairness Institute.  Having duly considered these requests, the Board (Member Hayes, dissenting) has decided to proceed with the meeting as scheduled.  Sufficient public interest in participating in the meeting has been expressed to warrant extending the meeting through July 19, 2011.  Moreover, interested parties that are unable to participate in the hearing or wish to extend their oral remarks may do so through the submission of written comments by August 22, 2011, pursuant to the NPRM.

The House Committee on Education and the Workforce did not wait on the Board's public hearing, choosing to hold a hearing of its own this past Thursday, "Rushing Union Elections: Protecting the Interests of Big Labor at the Expense of Workers' Free Choice."  Witnesses included former NLRB Chairman Peter Schaumber, Dana Corp. employee Larry Getts, Indiana Professor Kenneth Dau-Schmidt, Appleton, Wisc. business owner John Carew, and Michael Lotito, Esq. of Jackson Lewis.

More Resources:

• Fox News Coverage of House Education & the Workforce Committee Hearing
• Workforce Fairness Institute's letter to NLRB requesting extension
• "Enzi, Hatch and Isakson Call on NLRB to Delay 'Quickie Union Election' Rule Hearing" -- press release
• "NLRB breaks Obama's rule on 'quickie' union elections, Senate Republican says" -- Daily Caller
• "Support Keeps Coming for NLRB Rule Change" -- AFL-CIO Now blog
• "Putting 'labor' back in NLRB" -- L.A. Times editorial

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Human Resources Executive Online ran a piece today in which I commented on the Department of Labor's proposed overhaul of the fifty-year old interpretation of "advice" in Section 203 of the LMRDA:

"The DOL is proposing to drastically widen the net it's casting ... ; this new rule will drag in an almost endless variety of business advisers, forcing them to disclose information about their finances, their contractual relationships and make the reporting requirements so onerous that employers are going to have to think twice about whether to avail themselves of these consultants' services," says Borden.

"On the flip side," he says, "consultants and attorneys are going to have to decide whether or not to continue in the line of business they're in -- whether this level of disclosure, and the paperwork it entails, is worth it."

The piece also features commentary from former NLRB General Counsel Ron Meisburg, now an attorney with Proskauer:

"I don't think this is proper," says Meisburg. "[This proposal] is going to potentially sweep in what attorneys have long done for clients, which includes training, documentation and so forth. I think that's why Congress put in an advice exception [to the LMRDA] in the first place, to prevent this kind of problem from coming up."

AFL-CIO President Richard Trumka, on the other hand, calls this a "modest step": 

"The proposed rule does not address many of the fundamental problems with our labor laws, but it will help bring critically needed fairness and balance to this part of the process," Trumka said after the proposal was announced.

Needless to say, we respectfully disagree.  You can read the entire piece here.

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On the heels of the National Labor Relations Board's proposed rulemaking to shorten the time period between the filing of a representation petition and the holding of an election, Cornell Professor Kate Bronfenbrenner has issued a new study entitled "The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence."  Along with Columbia professor, Dr. Dorian Warren, Professor Bronfenbrenner has published the eight page "working paper" in support of the Board's effort to drastically limit the pre-election campaign period.

Like the Professor's earlier works in support of similar efforts, like the Employee Free Choice Act, the study is unabashedly partisan.  As in her earlier works, "No Holds Barred: The Intensification of Employer Opposition to Organizing." and "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," the Professor assumes all allegations of unfair labor practices to have actually occurred, and conflates any and all legitimate employer response to organizing with unlawful coercion and intimidation.  Again, the Professor suggests here that all of the anecdotal data studied came exclusively from interviews with union organizers -- yet there is no effort to discount the obvious biases likely held by this self-interested population. 

No matter.  This study -- like those before it -- is likely to be widely cited by proponents of the Board's current effort to eliminate lawful employer speech in response to union organizing efforts.  The paper's introduction may provide a telling window into where supporters would like to see the time limits drawn:

Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition.  But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed.  Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay."

More cases being held within 21-30 days is "some progress," but bottom line -- proponents of the Board's proposed measures still consider more than 20 days to be "delay."

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As reported earlier, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections.  While legislators were unable to eliminate the time between petition and representation election entirely via the failed push for the Employee Free Choice Act, there have consistently been proponents of shortening this period, including current Chairman Wilma Liebman, Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA).

While official publication of the Notice is expected tomorrow, there are numerous related resources online at the Board's website including a red-lined version of the proposed rule changes, a Fact Sheet and a "summary of the main changes" being contemplated to the representation process.

Regarding these significant proposed changes, reflecting comments she has made in the past, Chairman Liebman today explained:

One of the most important duties of the National Labor Relations Board is conducting secret-ballot elections to determine whether employees want to be represented by a labor union.  Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.  Under the law, as the Supreme Court has explained, the Board is responsible for the rules that govern representation cases. 

Over the decades, the Board has revised its rules periodically, looking for ways to achieve a broadly-shared goal: making the representation process work as well as possible.  One important result has been to reduce the typical time between the filing of an election petition (which triggers the Board’s procedures) and the actual election.  But the current rules still seem to build in unnecessary delays, to encourage wasteful litigation, to reflect old-fashioned communication technologies, and to allow haphazard case-processing, by not adopting best practices.  It is worth asking, again, whether the Board can now do a better job, and can better serve the employees, employers, and unions that participate in the election process.

Member Brian Hayes has dissented from the Board's 3-1 decision to propose these changes at this time.   In no uncertain terms, Member Hayes sets forth his position thus:

Today, my colleagues undertake an expedited rulemaking process in order to implement an expedited representation election process. Neither process is appropriate or necessary. Both processes, however, share a common purpose: to stifle full debate on matters that demand it, in furtherance of a belief that employers should have little or no involvement in the resolution of questions concerning representation. For my part at least, I can and do dissent.

The Board will hold a public hearing on the proposal on July 18 (and possibly 19); and is soliciting written comment for at least a 60-day period.  Employers should seriously consider participating in this process to the fullest extent possible.

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As has been expected, for quite some time now, the National Labor Relations Board tomorrow will officially publish a Notice of Proposed Rulemaking to drastically shorten the time for union representation elections. According to the NLRB's fact sheet, "[t]he proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing." However, these proposed amendments to the NLRB's Rules and Regulations will have a drastic effect on an employer's ability to respond to organizing campaigns and for employees to become educated about the advantages and disadvantages of union representation and collective bargaining.

Under current Board policy, the NLRB strives to hold representation elections within 42 days after the petition is filed. However, the Board's proposed amendments will shorten that period by days, if not weeks, by deferring most voting/bargaining unit issues until after the election and eliminating the parties' ability to request review of a Regional Director's decision prior to the election.

Specifically, the proposed rules will require the Regional Director to schedule the pre-election hearing to begin within seven days after a hearing notice is served. By the start of the hearing, the employer must state its position on election-related issues that it intends to raise at the hearing, including the Board's jurisdiction; the appropriateness of the bargaining unit sought by the union, and the type, date, and location of the election. The union will then respond to the positions taken by the employer. After hearing the parties' positions, the hearing officer will identify their disagreements and accept evidence only on genuine issues of material fact affecting those issues. However, and most importantly, unless the issues affect 20 percent or more of the unit, the litigation of those disputes will be deferred until after the election. Moreover, even if the unit issues are litigated prior to the election, the parties cannot request review from the Board prior to the election.

Once the Regional Director issues his or her direction of election, the employer will have two days, as compared to seven days now, to provide a final list of eligible voters to the union (the Excelsior list). Current rules and regulations only require the employer to provide names and addresses, but the new rules will require the employer to list phone numbers and email addresses on the Excelsior list when available.

The proposed rules also seek to take advantage of modern communication technologies. In addition to providing email addresses on the voter eligibility list, the new rules will allow petitioners to file election petitions electronically and for the NLRB to provide notices directly to employees through email when addresses are available.

The Board invites comments on its proposed rulemaking in two ways. First, the Board is holding a public hearing scheduled for July 18 and possibly July 19. Second, it is providing a 60-day period for written comments, with 14 days for replies, that may be submitted electronically though Regulations.gov or by mail to the Board's Washington D.C. headquarters. As with the Department of Labor's proposed revised interpretations of the Labor-Management Report and Disclosure Act issued today, employers are encouraged to assess the potential impact of these proposed changes on their operations; and to consider submitting comment.

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On June 21, 2011, the Department of Labor’s Office of Labor-Management Standards (OLMS) will publish proposed revisions to its interpretation of the Labor-Management Report and Disclosure Act of 1959 (LMRDA), which will expand greatly what employers and their labor relations consultants must report to the Department of Labor.

The LMRDA was enacted by Congress in 1959 for the purpose of shedding light on labor-management relations, governance, and management. Its provisions include financial reporting and disclosure requirements for labor organizations, their officers and employees, employers, labor relations consultants, and surety companies. Section 203(a) and (b) of the LMRDA require employers and their labor relations consultants to report any agreement or arrangement between them where the consultant will undertake activities, directly or indirectly, to persuade employees to exercise or not to exercise their right to organize and bargain collectively.

However, Section 203(c) exempts from these reporting requirements “the services of such [consultant] by reason of his giving or agreeing to give advice to such employer…” Section 204 also exempts certain attorney-client communications from reporting, which is defined as, “ information which was lawfully communicated to [an]…attorney by any of his clients in the course of a legitimate attorney-client relationship.”

At issue under the DOL’s proposed revisions are its interpretation of the term “advice” in Section 203(c). With exception of a brief period in 2001, since 1962 the DOL has interpreted "advice" to exclude an employer-consultant agreement where the consultant has no direct contact with employees and limits his activity to providing the employer and its management team with advice or materials for use in persuading employees that the employer has the right to accept or reject.

In the DOL's proposed revisions, the application of the “advice” exemption under Section 203(c) depends on whether an activity can be considered giving “advice,” meaning an oral or written recommendation regarding a decision or a course of conduct, as opposed to engaging in direct or indirect persuasion of employees. Specifically, the proposed revised interpretation will state:

With respect to persuader agreements or arrangements, “advice" means on oral or written recommendation regarding a decision or a course of conduct. In contrast to advice, “persuader activity” refers to a consultant’s providing material or communications to, or engaging in other actions, conduct, or communications on behalf of an employer that, in whole or in part, have the object directly or indirectly to persuade employees concerning their rights to organize or bargain collectively. Reporting is thus required in any case in which the agreement or arrangement, in whole or in part, calls for the consultant to engage in persuader activities, regardless of whether or not advice is also given.

According the DOL's notice, under this revised interpretation reportable agreements will include those in which a consultant agrees to plan or orchestrate a campaign for an employer to avoid or counter union organizing. It will also include any planning, directing, or coordinating of the activities of management and supervisors or the providing of persuader material to them for dissemination or distribution to employees. Moreover, drafting or implementing policies for the employer designed to directly or indirectly persuade employees will also trigger a reporting obligation. 

The proposed revisions to the regulations and forms would combine to impose extensive and sweeping new reporting obligations on employers who would utilize the expertise of outside consultants, attorneys or other professionals when addressing labor relations issues.  If the “advice exception” is indeed narrowed as proposed in the document being posted tomorrow, employers will need to report the details of these third-party relationships regardless of whether the third-parties have any contact with employees.  Employers may choose to address labor relations issues by themselves, instead of engaging experienced outsiders to assist and risking additional extensive reporting obligations.  Likewise, outside professionals may turn their talents and experience to other pursuits, rather than assuming the risk of the extensive additional disclosure.

The DOL is requesting comments to its proposed revised interpretations, which will be due 60 days after publication.  Employers would be wise to revisit any existing relationships that might fall within the broad scope of the proposed rule, assess its potential impact and to consider submitting comment.

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On June 9, 2011, the nonprofit organization Save Our Secret Ballot and 34 individuals moved to intervene as defendants in the National Labor Relations Board’s lawsuit against the State of Arizona challenging Article 2 § 37 of the Arizona Constitution.  That state constitutional provision, passed by voter referendum last year, requires a guarantee of a secret ballot in any election for union representation. Save Our Secret Ballot is a nonprofit organization whose stated purpose is to educate the public on the continued need for a secret ballot for union recognition. Almost all of the individual intervenors are Arizona residents employed in the non-unionized, private construction industry.

In the lawsuit, the Board claims that Arizona Constitution Article 2 § 37 is pre-empted by the National Labor Relations Act. Article 2 § 37, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

The Board's Complaint asserts that “[t]he NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative…” Accordingly, the Board argues that Arizona Constitution Article 2 § 37 ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Save Our Secret Ballot argues in its motion that it is entitled to intervene because it has acquired particular knowledge of legal and factual issues implicated by the Board’s lawsuit through its development of the ballot measure in Arizona and in other states. It also claims that Arizona’s interests are not identical to its own “because Save Our Secret Ballot’s interests include expanding the secret ballot protection in states beyond Arizona.” The motion further explains that the individuals should be allowed to intervene because:

the individual applicants will assert their personal rights under the First Amendment and the National Labor Relations Act…. Although the State has standing to defend individual rights established by its laws, see, e.g., Virginia ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 605 (E.D. Va. 2010); Florida ex rel. McCollum v. U.S. Dept. of Health & Human Services, 716 F. Supp. 2d 1120 (N.D. Fla. 2010), it does not have standing to assert individual federal constitutional or statutory rights. Those critical affirmative defenses may only be raised by the individual applicants.  

Save Our Secret Ballot and the individuals claim that amicus status is insufficient because it does not allow them to raise issues or arguments formally and gives them no right to appeal an adverse decision.  According to the motion, the State of Arizona will not oppose their request to intervene.

Several former Board officials, including one former Republican General Counsel who testified at a February 11, 2011 hearing before the House Committee on Education and the Workforce, have suggested that the Board's preemption theory has significant merit under these circumstances.  Other witnesses at that hearing encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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On May 26, 2011, the House Subcommittee on Health, Education, Labor & Pensions held a hearing entitled "Corporate Campaigns and the NLRB: The Impact of Union Pressure on Job Creation."  Subcommittee Chairman Rep. Phil Roe (R-TN) opened the hearing, defining "a corporate campaign" as a "union effort to disrupt an employer’s routine business" in order to put pressure on the employer to facilitate union organizing.  These campaigns often include coordinated tactics such as negative advertising, legal and regulatory complaints filed at government agencies, public relations and consumer communications, and appeals to political and religious leaders.  Rep. Roe noted the increasing popularity of this strategy and some related concerns thus:

Over the years the use of corporate campaigns has accelerated. According to one study, between 1974 and 1999, only 200 corporate campaigns were identified. Yet in 2005 it was estimated that between 15 and 20 corporate campaigns were underway at any given time. And recently the National Labor Relations Board has taken a number of steps to expand the arsenal of tactics available for a corporate campaign.

The board has removed bannering restrictions previously placed on boycotts of neutral employers. Employees of onsite contractors have been granted greater access to the property of the contracting employer connected to organizing activity. The board has also requested briefs that could allow even greater access to an employer’s property.

Testifying at the hearing were labor lawyer Jonathan Fritts, Esq., of Morgan Lewis; Chet Karnas, owner of Lone Sun Builders, Inc.; David Bego, CEO of Executive Management Services; and, UC Law Professor Catherine Fisk.  An archived webcast of the hearing is available here, and the prepared introductory testimony of each witness is here. 

For more on corporate campaigns, see these earlier blog posts and other resources:

• "UAW Asks Auto-Makers to Agree to 'Principles for Fair Union Elections" (January 2011)
• "Columnist Tells Starbucks to 'Smell the Coffee and Fight Back" (June 2009)
• "Union Corporate Campaigns Remain Route to Card Check Organizing" (May 2009)
• "SEIU Ramps Up Campaign Against Bank of America and CEO" (April 2009)
• "The Death of a Thousand Cuts: Corporate Campaigns and the Attack on the Corporation" by Jarol B. Manheim
• "RICO Suits: Employers Fight Back Against Union Smear Campaigns" Capital Research Center's Labor Watch (July 2008)

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On May 11, 2010, the National Mediation Board announced that it was changing a decades-old rule regarding the way votes are counted in union representation elections under the Railway Labor Act (RLA).  By letter dated May 17, 2011, Rep. Darrell Issa (R-CA), Chairman of the House Committee on Oversight and Government Reform, sent a letter to the Chairman of the NMB expressing concern over the change and requesting information regarding the change. 

Under longstanding RLA interpretation, a union would only be certified as a bargaining representative of a group of employees if a majority of all eligible voters cast ballots in favor of unionization -- the "majority in unit" standard.  The new standard, the "majority of votes cast" standard, essentially the standard applied by the National Labor Relations Board in elections under the NLRA -- a union is declared the representative of a unit of employees if a majority of the employees who cast valid ballots vote for union representation.

Rep. Issa's letter identfies a number of concerns with the change: exclusion of the Chairman from the consideration process; the influence of particular labor unions on the composition of the Board; and, the refusal to publish dissenting minority views, among other concerns.  In light of these concerns, and the "radical shift in the Board's interpretation of the Railway Labor Act," Rep. Issa requested production of a wide variety of documents in connection with the decision.  The letter requests designation of an NMB representative to provide a briefing by May 24, 2011, and production of the documents by June 1, 2011.

This is not the first challenge to the new rule.  On May 17, 2010, an association of airlines filed suit to block the rule, and a few weeks later, the NMB agreed to hold up implementation of the rule until June 30, while the Court considered the parties' respective motions.  That challenge failed and the rule became effective as of July 1, 2010. 

Last May, Senator Johnny Isakson (R-GA) introduced S.J. RES. 30, a Joint Resolution to express "congressional disapproval" of the NMB's administrative action.  The Senate voted 56 to 43 against the resolution.  This past February, Rep. Phil Gingrey (R-GA) introduced legislation to reverse the rule change. The "Restoring Democracy in the Workplace Act" (H.R. 548) was intended to repeal a rule published by the NMB on May 11, 2010, and the related regulations, but has gone nowhere beyond committee to date.

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The National Labor Relations Board this afternoon filed suit against the State of Arizona in the federal District Court for the District of Arizona.  Consistent with its previous announcement of its intent to do so, the Board is seeking a Declaratory Judgment proclaiming Arizona Constitution Article 2 § 37 pre-empted by the National Labor Relations Act. 

Article 2 § 37 of the Arizona Constitution, approved by voter referendum on November 2, 2010, states: 

[t]he right to vote by secret ballot for employee representation is fundamental and shall be guaranteed where local, state or federal law permits or requires elections, designations or authorizations for employee representation.

After citing sections of the NLRA which pertain to the designation or recognition of a union representative, the Board's Complaint asserts:

The NLRA permits but does not require secret ballot elections for the designation, selection, or authorization of a collective bargaining representative where, for example, employees successfully petition their employer to voluntarily recognize their designated representative on the basis of reliable evidence of majority support, in accordance with Sections 7 and 9 of the NLRA, 29 U.S.C. §§ 157 and 159, or where a construction union seeks recognition from a construction employer in accordance with Section 8(f) of the NLRA, 29 U.S.C. § 158(f).

Moreover, argues the Board, the provision ought to be preempted "insofar as it creates a parallel state enforcement mechanism for protecting employee representation rights that Congress assigned to the National Labor Relations Board."

Following an earlier exchange of positions between the Board and four states on this issue, several witnesses at a February 11, 2011 hearing before the House Committee on Education and the Workforce encouraged that this dispute be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

The State Attorneys General responsible for enforcing their states' secret ballot protection measures responded strongly to the initial threats by the Acting General Counsel to initiate litigation.  In the face of politically charged reactions to other recent choices, the Acting General Counsel is showing no signs of embracing a less aggressive approach going forward.

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Steven Greenhouse writes in the New York Times that the National Labor Relations Board plans to proceed with lawsuits against two of the four states it threatened earlier this year over state constitutional amendments to ban union recognition by card-check.  On January 14, 2011, Acting General Counsel Lafe Solomon advised the Attorneys General of Arizona, South Carolina, South Dakota and Utah that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections.  In response the states argued that the amendments support the current federal law and did not disrupt the federal regulatory scheme.  

In February, the Acting General Counsel replied to the states indicating that the Board would refrain from bringing suit while they discussed whether they could resolve the issue "without the necessity of costly litigation."  Now, Greenhouse reports the Board has indicated it will soon file federal lawsuits against Arizona and South Dakota seeking to invalidate the amendments: 

In a letter sent on Friday, the labor board told those states that it would invoke the United States Constitution’s supremacy clause in asserting that the state constitutional amendments conflict with federal laws and are pre-empted by those laws. One federal official said the lawsuits would be filed in the next few days.

The Board has suggested it might proceed against the other two states at a later date.  Greenhouse includes reaction from Arizona and South Dakota to the announcement: 

In an interview, Tom Horne, Arizona’s attorney general, criticized the board’s planned suit, saying, “I find it shocking that they do not believe in the fundamental principle of democracy that people have a right to a secret ballot.” He said that while federal pre-emption might apply to laws passed by Congress, it should not apply to the labor board’s decision allowing card check to be used in some unionization campaigns.

South Dakota’s attorney general, Marty J. Jackley, said he respectfully disagreed with the board’s analysis, adding that he did not believe the agency “has the authority under circumstances like this to sue a state.”

At a February 11, 2011 hearing before the House Committee on Education and the Workforce, several witnesses indicated that any preemption dispute over this issue could be resolved by Congressional action on the Secret Ballot Protection Act.  That Act, which would require secret ballot elections in federal union representation proceedings, was introduced by Senator Jim DeMint (R-SC) on January 27, 2011 and Rep. Phil Roe (R-TN) on March 15, 2011.

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In The Hill's Congress Blog today, former National Labor Relations Board Member and Chairman Peter Schaumber writes about the Board's approach to the closely watched Specialty Healthcare case.  Mr. Schaumber warns that the Board appears intent on effecting a major change in national labor policy without resorting to the basic strictures of the Administrative Procedure Act (APA).

Beyond the procedural criticism, Mr. Schaumber also expresses his concern about the substance of the anticipated changes:

A proliferation of small units presents the specter of an unending series of union organizing campaigns, NLRB proceedings, and the attendant litigation costs and disruption to the employer’s operations. Moreover, fragmentation of the workforce does not enhance collective bargaining, it undermines it. As the Board has recognized, it can give rise to conflicts of interest and dissatisfaction among constituent groups, impose the time and expense of continuous and repetitious bargaining, and lead to wage whipsawing, more frequent strikes, work stoppages and jurisdictional disputes. Even if agreements can be reached, fragmented units can create lasting legal and administrative costs in applying different agreements and working conditions to a slew of small groups of employees scattered around the workplace. Unit fragmentation also undermines the perceived legitimacy and bargaining strength of unions by severely restricting the size of their constituency relative to the overall workforce. These deleterious affects obviously take on heightened significance in the context of medical facilities, where heightened costs of care and the disruption of operations pose serious risks to public health.

That is why the NLRB, since its inception, has sought to avoid the proliferation of bargaining units and it is why the National Labor Relations Act specifically states that the extent to which the union has succeeded in organizing employees shall not be controlling in determining the appropriate unit. However, the Board has now signaled a sharp change in direction, one which may impact unit determinations, not just in nursing homes and other non-acute care facilities, but in all industries. The Board in the Specialty Healthcare case recently invited briefs on whether it should abandon decades of precedent and adopt a new rule that would approve units of two or more employees doing the “same job” in the “same location,” without regard to whether those employees comprise a distinct and homogenous group with interests separate from other employees. Under such a new standard, a unit consisting solely of maintenance employees working on the second floor of a nursing home or nursing assistants but not other care givers presumably would be appropriate. As would a unit consisting solely of the trumpet players in an orchestra or wide receivers on a football team, regardless of the sentiments of the other workers with whom they share common interests.

All the more reason why Mr. Schaumber argues that the Board's wide solicitation of amicus briefs is not sufficient.  He asserts that the Board must rather follow the APA's rulemaking procedures, "including conducting cost benefit assessments and providing the public notice and a full and fair opportunity to comment."  Read the entire piece here.

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This past April Fool's Day, labor relations consultant Phil Wilson raised eyebrows and heart rates with his gag e-mail announcing that the National Labor Relations Board had adopted implemented a new 5-day timetable for union representation elections.  Our post the next day:

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

We may soon see how distant "not so distant" is.  At Wednesday's hearing before a subcommittee of the House Committee on Appropriations, Board Chairman Wilma Liebman acknowledged the Board is considering engaging in rulemaking to shorten the time frame from the filing of a representation petition to the conduct of an election.  As reported by the Chamber of Commerce's NLRB Insight blog:

Perhaps the most interesting revelation came when Rep. Jack Kingston (R-GA) asked Chairman Liebman about recent comments by Member Pearce regarding "quick snap" elections. Rep. Kingston's comments were likely referring to comments Member Pearce made at a conference at Suffolk University Law School in October. As reported by the Daily Labor Report (BNA), Member Pearce said that the Board must seek to hold an election as soon as possible after a petition is filed and that he found the system used in some parts of Canada, where elections are held in as little as 5 to 10 days, "intriguing."

In response, Chairman Liebman noted that while the current median time for elections is 38 days, the Board is giving "active consideration" to conducting rulemaking in this area and that the Board was looking at the various components that are part of the current secret ballot election process. In particular, the Board is considering whether these components are still working and necessary or whether they detract from the effectiveness of conducting elections.

Just a week before, the Chairman told NPR that the current NLRB election process is too long and favors management.  During the past few years, proponents of labor law reform like Senator Tom Harkin (D-IA), former NLRB Chairman William Gould, and former Senator Arlen Specter (D-PA) have advocated a shorter election period.

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Some of you may have received an e-mail alert yesterday from labor consultant Phil Wilson at LRI with the Subject line “Breaking News: NLRB Implements 5-Day Elections.” This was enough to raise the heart rates of many labor professionals around the country. The body of the email explained that the NLRB’s Representation Casehandling Manual was being changed “to shrink the target date for RC elections from the current 42-day period down to a 5-day target.”  The email’s “link” to the new manual told readers that it was all an April Fool’s trick from LRI. Management and its labor advisors breathed a sigh of relief. But was that relief premature?

The idea of quicker elections is not new. Critics of current Board procedure often complain that the 42 day election period is too long and allows management to intimidate voters.  Expedited elections were one of many alternatives to EFCA put forth by proponents of labor law reform. Senator Tom Harkin (D-IA) floated a 21 day election deadline as a potential compromise to EFCA. Former NLRB Chairman William Gould has also advocated a 21 day election period. And former Senator Arlen Specter (D-PA) often advocated a shorter election period as one component of labor law reform.

As the debate over EFCA cooled, the number of people discussing changes to the NLRB election process had dwindled. But it has not vanished completely. Just a day before LRI's gag e-mail, NLRB Chairman Wilma Liebman said in an interview that the current NLRB election process is too long and favors management.

So, while LRI's April Fool's e-mail alert was a well-designed prank on employers and the management bar, none of us should be too shocked to see a very similar e-mail from LRI or others some time in the not too distant future...

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In a case questioned as evidence of the National Labor Relations Board’s desire to implement significant change in the way it determines appropriate units for bargaining, the NLRB last week extended the time for submission of supplemental briefs by interested parties. In February 2009, the Board granted the Employer’s Request for Review in Specialty Healthcare & Rehabilitation Center of Mobile. On December 22, 2011, over the dissent of Member Brian Hayes, a three-Member Board majority issued a Notice and Invitation to File Briefs, 356 NLRB No. 56 (Dec. 22, 2010).

In this case, the union had petitioned for a unit of Certified Nursing Assistants (CNAs) only at the employer’s nursing home, excluding all other non-professional service and maintenance employees. The Regional Director’s determination that the limited petitioned-for unit was appropriate suggested further expansion of the application of the Board’s 1989 final rule regarding appropriate units in acute care hospitals over non-acute care facilities like the nursing home at issue.

The Board has invited interested parties to file briefs in connection with the case. The variety of questions presented explores whether and in what types of cases the Board should move away from its traditional case-by-case analysis of the appropriateness of a petitioned-for unit in favor of a more categorical approach. Briefs were originally due on or before February 22, 2011, but that deadline was previously extended to March 8, 2011. Responsive briefs are due tomorrow.

Over a dozen parties filed amicus briefs, including the American Hospital Association and American Society for Healthcare HR Administration, Retail Industry Leaders Association (RILA), Coalition for a Democratic Workplace, the Chamber of Commerce, AFL-CIO, SEIU, IUOE, and Senators Michael Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA).

Many of the briefs filed by labor organizations focus predominantly on the facts of Specialty Healthcare, choosing to answer the Board’s questions regarding the propriety of the CNA-only unit in the nursing home at issue in that case.

In a brief prepared by Proskauer, however, RILA asserts that the Board’s consideration of a presumptive rule here is based on Member Becker's unsuccessful effort in Wheeling Island Gaming, 355 NLRB No. 127 (August 27, 2010) to adopt as appropriate a very limited unit of just the "poker dealers" at a casino, while excluding all other card dealers.  RILA argues that a presumptive rule based on "employees performing a job" or simply on a "proposed unit" – as considered here -- violates the Board’s mandate, the legislative history of the Act and relevant case law. The broader management concern:

In place of predictability, the Board’s rule would insert the unknown. Instead of stability, it would offer the potential for chaos, as employees currently – and, according to Board precedent, appropriately – placed within homogeneous single-facility bargaining units could be splintered into departmental fiefdoms, each of which would seek to gain leverage and personal advantage. Put simply, 60 years of success indicates there is no problem with the single-store, single-unit presumption the Board currently applies. History likewise suggests that there is every reason to maintain this stability, and not to adopt the change suggested by the Board’s questions.

In addition, Senators Enzi, Hatch and Isakson requested that the Board provide representation case data which might be relevant to the issues under consideration. By letter dated March 7, 2011, Reps. John Kline (R-MN) and Darrell Issa (R-CA) expanded upon this request, asking the Board to post requested representation case data on the Board’s website. Both groups of legislators asked for an extension of time within which to file briefs once the information was provided.

In response, the Board has posted representation case data for the years 2000 to 2011 on NLRB.gov. Moreover, the Board has granted interested parties permission to file ten-page supplemental briefs, based on issues implicated by this data alone, by March 29, 2011.

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Chairman of the House HELP Sub-Committee, Rep. Phil Roe (R-TN) has introduced the Secret Ballot Protection Act (H.R. 972).  Back on January 27, 2011, Senator Jim DeMint (R-SC) introduced the Senate version of the bill (S. 217).  Rep. Roe's bill tracks Senator DeMint's bill, and the language of the bill as introduced in previous sessions of Congress.

While the bill faces numerous mathematical obstacles to passage in the Senate, not to mention a certain Presidential veto, the House version should pass easily.  As the National Labor Relations Board and proponents of the Employee Free Choice Act continue to expand endorsement of alternative methods of union recognition, we should expect the House might conduct hearings on this bill.  In recent hearings before Rep. Roe's Sub-Committee, management attorneys urged Congress to pass the Secret Ballot Protection Act in order to avoid the pre-emption battle unfolding between the National Labor Relations Board and state governments over state secret ballot constitutional amendments.

More resources and commentary:

• "The secret ballot protection act" by Rep. Roe -- The Hill's Congress blog
• Web archive of February 11, 2011 House HELP Sub-Committee Hearings
• "Secret Ballot Protection Act Reintroduced in House" -- Enochs Law Firm blog

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Earlier this week, NAM's Shopfloor blog posted a piece noting that Google featured ads for the National Labor Relations Board's website, under the heading "Labor Organizations Info" and reading:

Find Info on How to Start a Union

Get the Process and More on Our Site!

Shopfloor and LaborUnionReport both questioned why a federal agency might be using taxpayer dollars to promote the formation of unions.

Late this afternoon, the National Labor Relations Board issued a brief "Fact Check" statement, purportedly to correct what it calls "an error of fact" thus:

It has been reported that the NLRB spent Agency funds on Google ads. An initial review indicates that the ads were provided at no charge beginning in 2008 by Google.

And...

The Agency has decided to discontinue them.

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Last week, Rep. Phil Gingrey (R-GA) introduced legislation to reverse a controversial rule change implemented by the National Mediation Board (NMB) last year which made it easier to organize unions in the airline industry. The "Restoring Democracy in the Workplace Act" (H.R. 548) is intended to repeal a rule published by the NMB on May 11, 2010, and the related regulations.

The NMB rule at issue changed the manner in which the results are determined in union representation elections under the Railway Labor Act.  Previously, a decades-old rule provided that a union would only be certified as a bargaining representative of a group of employees if a majority of all eligible voters cast ballots in favor of unionization -- the "majority in unit" standard.  The new standard, the "majority of votes cast" standard, matches the standard applied by the National Labor Relations Board in elections under the NLRA -- a union is declared the representative of a unit of employees if a majority of the employees who cast valid ballots vote for union representation.  After a court challenge failed to halt the agency's promulgation, the new rule went into effect.

Rep.Gingrey's proposal is simple:

Effective January 1, 2011, the rule prescribed by the National Mediation Board relating to representation election procedures published on May 11, 2010 (95 Fed. Reg. 26062) and revising sections 1202 and 1206 of title 29, Code of Federal Regulations, shall have no force or effect.

While the House bill has currently has thirty-two co-sponsors, and is likely to pass a vote there, the Senate will remain a hurdle for the bill.  Last May, Senator Johnny Isakson (R-GA) introduced S.J. RES. 30, a Joint Resolution to express "congressional disapproval" of the NMB's administrative action.  The Senate voted 56 to 43 against the resolution.  Senators Lincoln (D-AR), Pryor (D-AR) and Nelson (D-NE) crossed the aisle to vote in support of the resolution.  All Republican Senators voted for the measure with the exception of Sen. Lisa Murkowski (R-AK) who did not vote.  A similar pattern, even if GOP pick-ups provide a majority, will still likely fall short of the numbers needed for a cloture vote.

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Senator Jim DeMint (R-South Carolina) today introduced the Secret Ballot Protection Act (SBPA), a bill intended to "guarantee the right of every American worker to have a secret ballot election on whether to unionize."  While the full text is not yet available, versions of this bill introduced in earlier sessions of Congress would have made it unlawful for an employer to recognize or bargain with a union unless a majority of employees had voted for union representation in an NLRB-conducted secret ballot election.  The bill has been introduced repeatedly in previous Congresses during legislative battles over the Employee Free Choice Act.  Seventeen Republican cosponsors have joined DeMint to introduce the bill.

In an introductory press release, Sen. DeMint referenced EFCA directly:

“Last Congress, union bosses and their Democrat allies tried their best to deny workers their basic American right to a guaranteed secret ballot election....  Secret ballot voting is a basic American value that we must protect. This bill ensures every American worker gets to cast a secret ballot vote without pressure and fear of retribution from union organizers and coworkers looking over their shoulder. No American should be forced to join or pay dues to a union just to have the opportunity to work and provide for their family.”

The Senator's release also makes express reference to the recent letter sent by the Acting General Counsel of the NLRB to four states – South Carolina, Arizona, South Dakota and Utah -- regarding their state constitutional amendments making secret ballot elections mandatory:

The threatening letter was written by acting NLRB general counsel, Lafe Solomon, who has not been confirmed by the Senate. Today, the states responded to the board in a letter stating: “These state laws protect long existing federal rights and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.”

In a Washington Post piece earlier this month, I predicted that passage of either the Employee Free Choice Act or the Secret Ballot Protection Act would be nearly impossible in this Congress.  It isn't hard to see why.  While the SBPA would likely sail through the House, finding the thirteen Democratic Senators to break party ranks to pass a cloture motion on this will be difficult.   To be sure there were Democrats who opposed EFCA, but few of them staked a vocal, public position -- and some of them are no longer serving.  

Still, this bill may be an important contribution to a debate certain to continue, if not by legislation, certainly via the Board's administrative processes and the Courts -- namely, to what extent are alternative means of union recognition lawful, tolerated, inferior, encouraged or prohibited?

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This past Friday, January 14, 2011, the National Labor Relations Board advised the Attorneys General of four states – Arizona, South Carolina, South Dakota and Utah – that the National Labor Relations Act preempts constitutional amendments to require the use of secret ballots in union representation elections. Letters sent by Acting General Counsel Lafe Solomon assert that these amendments, approved by voters in each of these states last November, conflict with Section 7 of the National Labor Relations Act.

In the letters, Acting GC Solomon cites Linden Lumber Division v. NLRB, 419 U.S. 301 (1974) and NLRB v. Gissel Packing Co., 395 U.S. 575 (1969) for the proposition that federal law provides employees two different paths to pursue the Section 7 right to choose a representative: a secret ballot election or voluntary recognition. The state constitutional amendments, however, require only secret ballot elections to select union representation according to the Acting GC’s letters. Accordingly, the letters assert these conflicting amendments are preempted by operation of the Supremacy Clause set forth in Article VI of the U.S. Constitution.

Acting GC Solomon requested responses from the states within two weeks. If the states refuse to acknowledge that these provisions are unconstitutional, the Board has indicated it will initiate civil actions in federal court to have them invalidated.  When we reported on similar efforts by states in early 2009, we noted that federal preemption principles would likely pose significant legal challenge to the enforcement of these state provisions.  It seems we will soon find out.

More commentary, resources:

• "State Constitutional Amendments Conflict with NLRA" -- NLRB Fact Sheet
• "NLRB: Federal Law Pre-Empts State Secret-Ballot Amendments" -- AFL-CIO Now blog
• "NLRB: State Secret Ballot Measures Are Pre-Empted" -- Workplace Prof Blog
• "Obama Admin Bullies States Over Card Check Rules" -- Washington Examiner "Beltway Confidential"

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On January 10, 2011, the National Labor Relations Board invited briefs from interested parties in a case which considers whether the Board has jurisdiction over a charter school in Illinois. In Chicago Mathematics & Science Academy Charter School, Inc. (13- RM-1768), the Chicago Alliance of Charter Teachers and Staff filed a petition for a representation election with a state labor agency, the Illinois Educational Labor Relations Board. Seeking to represent a unit of teachers, social workers and counselors, the union asserted that the state board filing was proper because the school is a “political subdivision” of the state. Such political subdivisions are exempt from the federal jurisdiction of the NLRB under Section 2(2) of the National Labor Relations Act.

The Charter School, however, maintains it is not a political subdivision of the state, and that the NLRB should conduct any election. In NLRB v. Natural Gas Utility District of Hawkins County, Tenn., 402 U.S. 600 (1971), the Supreme Court set forth a test for assessing whether entities are exempt “political subdivisions”. Entities are so exempt if they are “either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate.”

The state laws establishing charter school laws vary from state to state. Applying the facts of various cases, NLRB Regional Directors have come to differing conclusions -- asserting jurisdiction in some cases and declining in others. The Board has indicated that the “decision in this case could provide further guidance as to when charter schools fall under NLRB jurisdiction."

Briefs are due by March 11, 2011, with responsive filings by March 25, 2011.

More commentary, resources:

• "NLRB Considers Jurisdiction Over Charter Schools" -- Workplace Prof Blog
  
• "NLRB invites briefs regarding charter school jurisdiction" -- LawMemo
• Chicago ACTS website
• Chicago Math & Science Academy website

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The United Auto Workers has issued a two page flier entitled “UAW Principles for Fair Union Elections.”  The Principles are obviously directed at the various foreign automakers operating non-union facilities in the United States.  Among other disputes, the UAW has been engaged in a protracted battle with Toyota over its inability to organize factories primarily throughout the South.  This recently issued document appears to be part of a new, long-awaited P.R.strategy to “reset” the union’s efforts.

The document itself is highly critical of the current state of American labor law, and the institutions tasked with its enforcement. Echoing the language used by sponsors and other proponents of the Employee Free Choice Act, the introductory sidebar to the UAW’s “Principles” states:

The current federal framework under the National Labor Relations Act does not protect the rights of workers to freely decide whether or not to join the UAW. ... Employee attempts at redress are futile due to lengthy delays and lack of penalties.

The Principles include commitments by the parties to comply with existing labor law – e.g., not to promise benefits to deter organizing, not to threaten repercussions on account of union sympathies, etc. Law-abiding employers should not have much problem acknowledging these.

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