In the past few weeks, there have been a number of developments from the NLRB that will impact employers with both unionized and non-union work forces. Here is a brief summary:
- On December 22, 2011, the NLRB published a final rule in the Federal Register amending its election case procedures to reduce unnecessary litigation and delays. The rule is due to take effect on April 30, 2012, and is designed to speed up the NLRB election process and reduce the need for administrative hearings. The proposed rules are generally regarded as favoring unions who seek to organize non-union workplaces. Employers who face potential union organizing would be well advised to become familiar with the rule available online. The U.S. Chamber of Commerce immediately filed suit seeking to prevent the rule from taking effect. According to a statement issued by the Chamber, the NLRB’s final “‘ambush election rule’ imposes unprecedented and sweeping changes to the procedures for conducting workplace elections to determine whether employees do or do not wish to unionize.”
- On December 19, 2011, U.S. District Judge Amy Berman held a hearing in the lawsuit filed by the National Association of Manufacturers and other business groups challenging the NLRB’s proposed rule that would require all employers subject to the National Labor Relations Act to put up a poster advising employees of the right to join a union. The suit alleges the rule mandating the poster is unconstitutional and exceeds the bounds of the NLRB’s authority. The posting rule was originally supposed to take effect on November 14, 2011, but the NLRB postponed the effective date until January 31, 2012. During the hearing on December 19, Judge Berman said she might require even more time than that to issue her opinion and requested the NLRB consider pushing back the effective date even further. Following up on Judge Berman’s suggestion, the NLRB announced on December 23, 2011, it would again postpone the effective date of the posting requirement until April 30, 2012.
- On Wednesday, December 14, 2011, President Barack Obama announced his intent to nominate Sharon Block and Richard Griffin as members of the NLRB. Sharon Block is the Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Mr. Griffin is the General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994.
- The departure earlier this year of NLRB Chair Wilma Liebman and the December 31, 2011 expiration of Craig Becker’s recess appointment leaves the NLRB with just two members, one short of the necessary three-person quorum. If the Senate fails to act on any President Obama’s nominees, or if President Obama fails to make a recess appointment, the NLRB will be crippled.
If nothing else, given the above developments and the fact we elect a president in 2012, the new year will be an interesting one for NLRB watchers.