• Non-Union Employers Prepare Now
  • January 4, 2012 | Authors: Mark B. Goodwin; Michael P. Mac Harg; Clinton S. Morse
  • Law Firms: LeClairRyan - Richmond Office ; LeClairRyan - Los Angeles Office ; LeClairRyan - Roanoke Office
  • With the new date of the Quick Elections Rule now adopted for April 30, 2012, employers should be aware that President Obama has announced his intent to make three recess appointments to the National Labor Relations Board. The appointments are:

    • Richard Griffin (D) - General Counsel of the International Union of Operating Engineers (IUOE)
    • Sharon Block (D) - Deputy Asst. Secretary for Congressional Affairs, U.S. Department of Labor; and
    • Terrence Flynn (R) - Current Chief Counsel to NLRB Member Hayes

    Assuming the validity of the recess appointments are upheld in court (with the assumption of a challenge), they would expire when Congress adjourns at the end of 2013.

    The last day of Member Craig Becker’s service was Tuesday, Jan. 3. With the expiration of his appointment, the Board dropped to two members, Chairman Mark Gaston Pearce and Member Brian E. Hayes. The Board was last at its full five-member strength in August of 2010.

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    During an end of the year flourish, the NLRB has finalized its "quickie election" rule--sometimes called the "Ambush Election Rule"--and set April 30, 2012 as its effective date. Also, to meet a federal court's request for more time to review its NLRA Rights Posting Rule before deciding several business groups' challenge to the rule, the NLRB has once again postponed the effective date of that rule--also to April 30, 2012. This gives employers four months to complete management training programs, conduct union vulnerability assessments, and prepare new campaign materials before all the new rules take effect.

    The U.S District Court for the District of Columbia appears ready to approve the NLRA Rights Posting rule but, based on the judge's comments during oral argument, may not approve all of its enforcement mechanisms. The judge hearing the challenge to the rule told the NLRB that it is a "complicated" case, and she requested more time for her review. The NLRB has consented to her request.

    The Quick Election Rule has been amended from the proposal published in June 2011. As a bottom line, we believe in most cases it means that a union representation election will be held within 15 to 30 days after a petition for representation is filed by the union--rather than in 10 to 20 days as predicted by Republican NLRB Member Hayes when the rule was first proposed. Nevertheless, 15 to 30 days would allow an employer substantially less time to campaign against unionization than the 38 to 42 days that has been typical in recent years. Hence, unless the rule is struck down by a federal court or Congress--an eventuality that cannot be predicted and may not occur--employers will need to change their programs for maintaining non-union status to include more assessment and campaigning prior to the filing of a petition by the union and more consolidated campaigning during the short time available after a petition for representation is filed.

    As soon as the final Quick Election Rule was announced, the United States Chamber of Commerce filed a lawsuit in the United States District Court for the District of Columbia asking the court to issue a preliminary injunction and to vacate the rule. The Chamber's Vice President for Labor Relations was quoted saying, "This year Christmas came early for the AFL-CIO, with a huge gift to organized labor from the NLRB. This rule has no conceivable purpose but to make it easier for unions to win elections." Because the NLRB majority has framed the new rule as a procedural rule under the Administrative Procedure Act, the new rule may be upheld by the courts. It is impossible to predict what the court will do in the Chamber's lawsuit.

    Republican Senator and Ranking Minority Member of the U.S. Senate Labor Committee, Mike Enzi of Wyoming, has also said he will invoke the Congressional Review Act to challenge the Quick Election Rule. This law allows the Senate or House to introduce a joint resolution to halt the rule. Such a resolution cannot be filibustered, but it still must obtain a simple majority in the Senate to pass. Since Democrats control the Senate, Democrat support will be needed for Senator Enzi's resolution to pass, and this may be a difficult hurdle for the Republican Senator to overcome.

    The Quick Election Rule was published in the Federal Register on December 22. It does not include all of the proposals in the original rule proposed in June but nevertheless would result in substantial shortening of time available for employers to campaign against the union after a petition for representation is filed, due to the following amendments to current NLRB procedures:

    • Giving NLRB hearing officers authority to limit the presentation of evidence in a pre-election hearing to that which supports a party's contentions and is relevant to the existence of a question concerning representation;
    • Giving hearing officers discretion whether to allow post-hearing briefs;
    • Denying employers the right to seek pre-election NLRB review of an NLRB Regional Director's decisions; and
    • Eliminating the current practice of delaying an election for 25 days after a Regional Director's direction of election in order to allow for the possibility of appeal to the NLRB.

    Under these amendments, in an election where a Regional Director exercises discretion to schedule a pre-election hearing for a date as soon as 7 days after a petition for election is filed, we believe an election may be ordered and scheduled on a date as little as 15 days after the petition is filed, although limits on NLRB resources may mean the election may not be scheduled until as much as 30 days after the petition is filed in some situations. For employers that choose to stipulate to an appropriate voting unit, it seems likely that NLRB Regional Directors will insist that elections be scheduled no more than 15 to 25 days after a petition for election is filed.

    Finally, because NLRB Member Craig Becker's term expired at the end of 2011, and because the NLRB anticipates political issues in Congress may mean that the NLRB will not have a quorum for a while, on December 29 the two-member majority of Craig Becker and Mark Pearce, with Republican Hayes dissenting, revised the NLRB's procedural rules further to "facilitate, as far as possible" the rapid processing of election cases during times when the NLRB lacks a quorum of 3 members. The new procedure will suspend the current practice of impounding election ballots in situations where a request for Board review has been granted or not yet addressed. Rather, under the new procedure, an NLRB Regional Director may certify election results and a bargaining representative notwithstanding an employer's filing of a request for NLRB review. Further anticipating the absence of a quorum, on December 14 the NLRB had already further revised its rules to allow NLRB administrative law judges and its Executive Secretary to issue some rulings in the absence of a 3-member quorum. Thus, the NLRB apparently has taken all the steps it can conceive of in order to assure its continued functioning during an absence of a quorum at the NLRB Member level.

    Unless a non-union employer is certain that the courts will enjoin all of these new NLRB measures, the employer should take diligent steps in early 2012 to ensure that it may maintain non-union status under the new rules once they become effective on April 30. We recommend enhanced management and supervisor training, union vulnerability assessments, and preparation of new campaign materials to use in pre-petition campaigns and consolidated materials for post-petition campaigns.