April 2012

On April 26, NLRB's Acting General Counsel Lafe Solomon issued a detailed memorandum, outlining in detail how regional offices will implement the new representation election rules from beginning to end. The memorandum can be read in its entirety here.

The General Counsel's office also issued a set of Frequently Asked Questions, explaining the revised rules and procedures to be followed by the regions. The FAQ can be read here.

Today is the day that the NLRB's new quickie election rules go into effect. These are significant changes to the election rules that organized labor has sought more decades. The changes will make it significantly harder for an employer to get an opportunity to get its message out once a petition has been filed. It will also increase the risks employers will have to take to campaign effectively after the petition is filed.

There is a potential that there will be a spike in union organizing and in election petition filings as unions may have held back for these rule changes to take effect. Prudent employers will be proactive as to their messages regarding the issues of union organizing, because although a union will be able to campaign for months before it files its petition, after it does, there may very well be just a few days before the Board rushes to an election.

We recently reported that The White House was threatening to veto legislation aimed at overturning a controversial rule promulgated by the NLRB aimed at speeding up union elections. No need. The Senate has rejected a Republican led attempt to overturn the new regulations. The defeat in the Senate was hailed by several unions including the Teamsters.

The Washington Post's story can be accessed here. 

The White House is threatening to veto legislation aimed at overturning a controversial rule promulgated by the NLRB aimed at speeding up union elections. According to the White House, “[i]f the president is presented with a Resolution of Disapproval that would reverse these measures adopted by the NLRB, his senior advisors would recommend that he veto the Resolution.”

The full story from The Hill can be found here.

Senate Minority Leader Mitch McConnell announced yesterday that the Senate Republicans had retained an attorney to file an amicus brief on their behalf in a case challenging the constitutionality of President Obama’s controversial recess appointments to the NLRB in January. 

The case, Noel Canning v. NLRB, No. 12-1115, is currently pending before the D.C. Circuit Court of Appeals. It is one of several currently pending cases in which employers appealing an NLRB decision have raised or attempted to raise the issue of the validity of the recess appointments. As we have covered in previous posts, the Board’s opponents take the position that Congress was not in recess at the time of the appointments, and, therefore, the President's appointments to the Board were not lawful.  Echoing this position, Senator McConnell called the recess appointments “an unprecedented power grab” and vowed to “demonstrate to the Court how the President’s unconstitutional actions fundamentally endanger the Congress’s role in providing a check on the excesses of the executive branch.”

Read the full announcement from Senator McConnell here. 

The D.C. Circuit Court of Appeals struck a blow, at least temporarily, against the NLRB’s controversial notice posting rule today by issuing an emergency injunction postponing application of the rule. The injunction will be in place while the D.C. Circuit considers an appeal from the D.C. District Court’s decision in March partially invalidating the rule. Although the district court’s March decision upheld the right of the NLRB to promulgate and require notice posting, its ruling struck down certain enforcement provisions of the regulation. The D.C. Circuit found that this uncertainty about enforcement, combined with the fact that the NLRB had already voluntarily postponed application of the regulation for several months while the district case proceeded, justified the injunction.

The D.C. Circuit’s injunction comes on the heels of a decision in a separate case pending in District Court for the District of South Carolina, which overturned the notice posting requirement completely, finding that it exceeded the statutory authority of the NLRB to promulgate rules. The D.C. Circuit’s injunction order recognizes these conflicting district court opinions. 

For now, the D.C. Circuit’s injunction means employers have at least a few more months relief from the NLRB’s notice posting rule, as the injunction will prohibit the rule from taking effect until the D.C. Circuit resolves the merits of the case.  The notice posting rule had been scheduled to go into effect on April 30, 2012.  Oral argument is scheduled in the D.C. Circuit appeal for September.  Stay tuned here for regular updates as this case progresses.

The D.C. Circuit case is National Association of Manufacturers v. NLRB, No. 12-5068.  Today’s injunction order can be found here.  See BT Labor Relations’ previous coverage of this issue here.

On April 13, Judge David C. Norton of the United States District Court for the District of South Carolina, Charleston Division, ruled that the NLRB's final rule requiring the posting of a general notice informing employees of their Section 7 (of the National Labor Relations Act, the "NLRA") rights exceeded the statutory rights of the NLRB, violated the Administrative Procedures Act and, thus, was unlawful. 

In his decision, Judge Norton found that Section 6 of the NLRA, which confers rulemaking authority on the NLRB, only allows the NLRB to make rules and regulations "as may be necessary to carry out the provisions of the [NLRA]."  He further found that, though possibly helpful, the posting requirement was not necessary for the NLRB to carry out the provisions of the NLRA. In reaching that determination, Judge Norton analyzed the congressional intent behind the NLRA, specifically Section 6, and did not find anything either in the statute itself or in the legislative history pointing to an intent to give the NLRB the authority to promulgate the notice posting requirement.

Earlier this year, a different District Court struck down part of the NLRB's Notice Posting Rule, but upheld the Board's authority to promulgate and require posting of the Notice. The conflict among the courts means that further litigation about this issue is likely.  Stay tuned.

Judge Norton's ruling can be found here.  Our description of the final rule can be found here.