Quickie Elections

The Mayans predicted that the world would end in 2012. They were wrong. However, U.S. employers may well be feeling like life is over as they once knew it after the head-spinning events of 2012 in traditional labor law. And the scary thing is, the NLRB has just gotten started, folks, as it enters 2013 with a three-member majority, all of whom are pro-Union Democratic appointees.

Your friends at BTLaborRelations.com have decided to again ring out the old year with our unscientific ranking of the Top 10 Labor Law events of the past year. After putting our heads together, here’s what we came up with:

10. D.R. Horton and Arbitration Agreements. The Board started the year with an astonishing ruling that an arbitration agreement containing a class action waiver violated the NLRA because it infringed on the right employees have to "engage in concerted action for mutual aid or protection." The Board has stood by its decision and recently followed it in an advice memo despite the fact that the Supreme Court and the Courts of Appeals are – so far – turning a cold shoulder to it.

Board Finds Certain Arbitration Agreements Violate NLRA
California Court of Appeals Not Persuaded by D.R.　Horton　Inc. v. Michael Cuda
D.R.　Horton　Files Reply Brief in Appeal of NLRB Decision
In the Spirit of DR　Horton, ALJ Extends Protections to Job Applicants
NLRB ALJ Finds Employee Arbitration Policy Unlawful

9. Ho Ho’s and Hockey. Labor disputes have resulted in the shutdown of one American tradition and has caused a lock-out in another. As previously reported here, after the Bakers Union turned down a concessionary contract, Hostess announced that it was closing its doors and liquidating the Company. While out on the ice, the lights have remained off as the NHL and the NHLPA have continued to struggle to reach an agreement on a new collective bargaining agreement. Today is Day 104 of the lock-out. Here are links to our coverage of the lock-out.

NHL Labor Clock Ticking Entering the Labor Day Weekend
NHL-NHLPA Talks Appear Stalled?
NHLPA Seeks to Block Lockout Under Provincial Labour Law
NHL Lockout: Day 73
NHLPA Decertification in the Works?

8. Recess Appointments. The President’s recess appointments of NLRB members continue to be the issue that won’t go away. On Dec. 5, 2012, oral argument in Noel Canning v. NLRB was held before a three-judge panel of the United States Court of Appeals for the D.C. Circuit. At issue is whether the appointments were legal. If the appointments were not legal, then it calls into question whether under New Process the NLRB had a quorum to act. Our prior posts on this topic can be found here.

7. Off-Duty Access. In Sodexo America, the Board ruled that a hospital policy restricting employees’ off-duty access violated Section 8(a)(1) of the NLRA. USC University Hospital in Los Angeles had an Off-Duty Access Policy which provided that off-duty employees were not allowed to enter or re-enter the interior of the Hospital or any other work areas outside the Hospital except to visit a patient, receive medical treatment or to conduct hospital-related business. The Board found that policy to be overbroad and interfered with employee rights under Section 7 of the Act. Our prior post on this topic can be found here.

6. Quickie Elections and NLRB Posting Rules. The NLRB’s actions in promulgating new posting requirements and revising the election rules to create a "quickie" or "ambush" election made our Top 10 of 2011. And they’re back again because both of those initiatives have been held up by Court action and are still in litigation and on appeal. Perhaps 2013 will be the year when we finally know whether the rules are legal and will be applied or were unlawfully promulgated. Stay tuned. You can access all of our prior postings on these issues here and here.

5. Dues Deductions. The NLRB's relentless march towards dismantling years and years of U.S. labor law continued this month when the Board overruled its own 50-year old policy on whether dues must be withdrawn from employee checks after the expiration of a collective bargaining agreement. The Board, on Dec. 12, 2012, overruled its Bethlehem Steel decision from 1962 and held that after the expiration of a CBA, an employer will continue to be obligated to withdraw dues from employee checks and forward them to the union.

4. At-Will and Confidentiality Provisions. The Board continued to press its authority and jurisdiction over non-union workplaces in decisions dealing with routine at-will disclaimer acknowledgments and confidentiality policies for internal employer investigations. The Board has found both to be violative of employee rights under Section 7 of the Act. Board action in both of these areas is forcing employers to closely examine at-will disclaimers and the manner in which they conduct internal investigations. Here are our previous posts on these subjects.

3. The Holiday Blitzkrieg. The Board’s holiday gift to U.S. organized labor didn’t go unnoticed. In an avalanche of game-changing rulings, the Board acted to "gut" Beck rights for dues protestors; required employers to deduct union dues even after contract expiration dates; exerted jurisdiction over teachers in charter schools; required employers to pay taxes and social security costs on backpay awards; required bargaining over discretionary discipline in the time frame between union recognition and enactment of a first contract; overturned "Facebook firings"; and overturned a well-settled rule that protected witness statements from disclosure to the union.

2. Social Media. The Board clearly identified social media as a priority issue in 2012. During the year, Acting GC Lafe Solomon issued three separate guidance memos on social media in which the agency made it clear that it viewed most employer restrictions on off-duty work-related social media chatter to interfere with employee rights to engage in protected concerted activity. We’ve written about this issue repeatedly during 2012. You can find out prior posts here.

1. Right to Work. After years and years of no progress on Right to Work legislation, amazingly and somewhat surprisingly, Indiana and Michigan during 2012 became the 23rd and 24th states in the U.S. to pass Right to Work laws. Both are also the first Rust Belt states to pass the legislation. The actions of both states underscore the disconnect that is occurring in labor policy in the U.S. As federal labor policies continue to accelerate to the left, states such as Indiana, Michigan, Ohio, Wisconsin and Arizona try to hold the line. Looking forward to 2013, the dramatically differing directions of state and federal labor policy may prove to be one of the most interesting stories of the coming year.

We at the BTLabor Relations blog thank you for staying with us during 2012 and hope you continue to follow us in 2013. Happy New Year!

On Friday, July 27, 2012, District Court Judge James Boasberg (D.D.C) denied the NLRB's motion to alter or amend his previous order which found the "ambush" election rules to be invalid because the Board lacked quorum. We previously covered this in more depth here. Judge Boasberg refused the invitation for "rehashing arguments" and continued to find the NLRB's arguments regarding Member Hayes' abstention to be unpersuasive. The Court's opinion can be found here.

In light of this decision, the NLRB cannot implement its proposed rules which would have dramatically altered the union recognition election process.  However, the Court did note that "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."  This issue could resurface depending on the future political make-up of the Board.

The Board has announced that it is “temporarily” suspending implementation of its ambush election rules, in light of the D.C. District Court decision yesterday finding the rules invalid.  The Board’s notice states that about 150 representation petitions had been filed under the new rules since they went into effect on April 30. The parties involved in those cases will be given the opportunity to continue processing the case under the new procedures, but any newly filed cases will be processed under the old rules, at least for now.

Read the full notice from the Board here.

District Court Judge James E. Boasberg of the U.S. District Court for the District of Columbia issued an opinion this afternoon finding the NLRB's “ambush” election rules invalid because the Board did not have three members who cast a vote on whether to implement the rules when they were adopted in December.  Although the Board had three members at the time, Judge Boasberg found that Member Brian Hayes objected to the rules and did not cast a vote when the final rule was adopted.  Because Member Hayes effectively did not participate in adoption of the final rule, Judge Boasberg found that the Board lacked a quorum and that the adoption of the final rules was invalid under the U.S. Supreme Court's decision in New Process Steel. Judge Boasberg's entire opinion is available here.

Judge Boasberg's opinion did not reach the question of whether the final rule was otherwise lawful, had it been adopted when the Board had a quorum.  Instead, Judge Boasberg concluded that “representation elections will have to continue under the old procedures” unless a properly constituted quorum of the Board votes to adopt the rule. There is no word yet from the Board responding to today's opinion and it remains to be seen whether the Board will hold another vote to adopt the rules. Stay tuned.

See our prior coverage of the Board's “ambush” election rules here.

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.

As has been discussed in this blog recently, the NLRB has adopted "quickie election" rules that, among other union-favoring changes, greatly shorten the already-brief period of time from the filing of an election petition to the time the election takes place. These new rules are scheduled to go into effect on April 30, 2012. In December of last year, the United States Chamber of Commerce and the Coalition for a Democratic Workplace filed a lawsuit in the U.S. District Court for the District of Columbia, challenging the promulgation of the rules as contrary to the National Labor Relations Act, the U.S. Constitution, the Administrative Procedures Act, and the Regulatory Flexibility Act. On Friday, February 3, 2012, the Plaintiffs and the NLRB filed cross summary-judgment motions, (they can be found here) with the plaintiffs seeking to set aside the rules and the NLRB asking that the rules be upheld.

Here’s the conclusion to our countdown of the top ten traditional labor issues that made the news this year. Our top five are below; see numbers 6-10 in our post yesterday.

5. The Board mandates employee-rights posters, but lawsuits delay implementation

In a move that will affect virtually all private employers, whether unionized or not, the Board approved a final rule in August which requires employers to notify employees of their rights under the NLRA via an 11 x 17 inch poster. A copy of the required poster, along with more information about the posting requirement is available on the Board’s website.   

This posting requirement elicited strong opposition from many business groups, including the National Association of Manufacturers, the National Federation of Independent Businesses, and the U.S. Chamber of Commerce, who have all filed lawsuits against the Board challenging the posting requirement. In response to these suits, the Board has delayed implementation of the rule, most recently postponing the effective date of the posting requirement until April 30, 2012. 

So for now, employers can leave the NLRB poster off their walls, but all employers should stay informed on this issue as the implementation date approaches. 

See our previous coverage of this issue here.

4. Social media becomes a new battleground

Facebook came to traditional labor this year, as the Board put a new emphasis on social media as a form of protected activity. Several complaints were filed against employers during the early part of the year alleging unfair labor practices, after the employers disciplined or terminated employees for posts related to their jobs on their personal Facebook and other social media accounts. In August, General Counsel Solomon issued a report summarizing the cases and detailing the Board’s position on appropriate social media policies.

These actions by the Board caution employers to be wary of protected speech rights under the NLRA before taking action against employees for off-duty Facebook chatter and to also make certain that company policies on social media do not chill or limit discussion regarding working conditions. Recent General Counsel decisions have also brought up the issue of potential surveillance violations if employers monitor employees’ off-duty social media use. 

This continues to be a hot issue, and as we move into the new year, employers should stay cautious when it comes to social media.

See our previous coverage of this issue:

- New Facebook Cases - No Protected Concerted Activity, But Is It Surveillance??

- Update on Social Media issues with the NLRB

-  Labor & Employment Law Alert - NLRB Sues Non-Union Employer Over Facebook Firing

3. NLRB complaint against Boeing for alleged unlawful transfer of work creates national controversy

By far the traditional labor story that created the most national headlines this year was the Board’s complaint filed against Boeing in April alleging unlawful transfer of work over Boeing’s decision to open a new 787 Dreamliner assembly plant in South Carolina instead of building the new planes at Boeing’s facilities in Washington.  The key controversy wasn’t really the Board’s allegation of unlawful transfer of work, but its proposed remedy – shut down the brand new billion-dollar South Carolina plant and move the work to Washington.  Unsurprisingly, this suggestion turned some heads in the business world.  Accusations of job-killing by the NLRB soon followed, as well as legislation introduced in Congress to prevent the NLRB from mandating such a remedy. 

Boeing litigated the issue for much of the year, but ultimately agreed in December to settle the case as part of a new contract with the Machinists union for its Washington facility.  The union agreed to keep production of the Dreamliner in South Carolina in exchange for a promise by Boeing to build its new 737 MAX aircraft in Washington.  This agreement officially ended the saga for Boeing, as the Machinists union withdrew its charge.  As for the Board, it remains to be seen whether negative fallout, if any, from its decision to issue the complaint will affect its public perception in the future. 

See our previous coverage of this issue:

- Labor & Employment Law Alert - NLRB Seeks Unprecedented Order Requiring Boeing to Move its New Production Line Across the Country

- An active day at the NLRB

- Boeing and the Union Reach a Tentative Agreement to End Contentious Battle Over Cross-Country Relocation

2. Board implements “quickie election” rules despite strong criticism from dissenting Member Brian Hayes

While it took all year, the Board succeeded last week in finalizing what critics have dubbed its “quickie election” rules.  The new rules eliminate avenues for employers to challenge union activity prior to an election and also shorten time periods during which employers can campaign against unionization.  The rules had been proposed by the Board in June and generated significant criticism from business groups who found the rules blatantly pro-union and accused the Board of denying employers their rights to free speech.

Also highly critical of the proposed rules was the sole Republican member of the Board, Brian Hayes, who said he considered resigning prior to the Board’s meeting to vote on the rules just to prevent them from being implemented.  Member Hayes did not resign, but instead argued for more time to consider the rules, a request that was denied by his fellow Board members.  The Board voted 2-1 in November to finalize the rules and the final version was published in the federal register last week.   

As we move into 2012, this may not be the end of the issue, however.  The rules should take effect in April, but a lawsuit filed by the U.S. Chamber of Commerce challenging the new rules may change this. Stay tuned.  

See our previous coverage of this issue:

- Labor & Employment Law Alert - NLRB Election Changes Are Here (BT Alert)

- After A Long Wait, the NLRB Has Finalized the "Quickie Election" Rules

-  An active day at the NLRB  

-  NLRB releases update on “quickie election” vote scheduled tomorrow

- Strategic resignation by Member Hayes may derail scheduled Board vote on “quickie election” rules

1. Behind-the-scenes politics leave an uncertain future for the NLRB

As our list so far has illustrated, 2011 was an active year for the National Labor Relations Board, with several controversial decisions, new administrative rules, and Congressional scrutiny. But all of these issues that we’ve included in our list are really just a byproduct of a more aggressive, and some would say politically motivated, Board. And the composition of the Board, which has driven most of the change we’ve seen this year, not only heads our list for 2011, but provides a starting point for looking into the 2012 crystal ball.

2011 saw an increased politicization of the Board, with a contentious division between the Board’s Democratic and Republican members. Sole Republican member Brian Hayes even went so far as to threaten resignation in November over what he saw as the Board’s unwillingness to take the time to consider the full effects of its controversial “quickie election” rules prior to drafting a final version of the rules. The Board also made the controversial decision to publish those rules without allowing the customary time for dissenting members (in this case, Hayes) to prepare and publish a dissent. 

All of this behind-the-scenes politics has played out in the shadow of the looming expiration of Member Craig Becker’s appointment to the Board. President Obama appointed Becker as a recess appointment in 2010, which means that his term expires on December 31. Once his term expires, the Board (which is intended to have five members) will be left with only two remaining members. This loss of quorum will prevent the Board from issuing any new decisions or rules until a third member is appointed, under the U.S. Supreme Court’s New Process Steel decision. 

President Obama has attempted to prevent this from happening by recently naming two additional nominees for Board member positions, both Democrats.  (The President also nominated Republican Terence Flynn to the Board last January, but his nomination has not yet been considered by the Senate.)  However, the Senate so far has refused to hold a vote on any of the nominees and additionally appears to be avoiding declaring a formal recess so that the President cannot name a recess appointment as he did with Becker. 

This collection of events is set to leave the National Labor Relations Board effectively useless come midnight Saturday. As we ring in the new year, the Board may be closing up shop. Stay tuned to BT Labor Relations as we see what 2012 brings.

Disagree with our picks?  Let us know in the comments what traditional labor issues you think were most important in 2011.

The NLRB has finalized the amendments to its quickie election rules and will publish these rules in Thursday's Federal Register. The new rules eliminate avenues for employers to challenge union activity prior to an election and also shorten time periods during which employers can campaign against unionization. This departure from the historical norm comes just days before controversial Democratic Board Member Craig Becker's term is set to expire. Without Becker, the Board will be reduced to two members and will be unable to act.

Barnes & Thornburg has obtained an advance copy of the new rules which can be found here.The Board has also posted a short, technical summary on its website which can be found here. 

In response, the National Chamber Litigation Center and the Coalition for a Democratic Workplace filed a lawsuit Tuesday evening in the Federal District Court for the District of Columbia challenging the new rules. A copy of that complaint can be found here.

The new rules become effective on April 30, 2012.

UPDATE: Barnes & Thornburg issued a legal Alert that outlines the various changes to the NLRB's election rules. You can read the entire Alert by simply clicking here.