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From elections to poster mandates, the NLRB throws its weight around.
Last year's standoff between the National Labor Relations Board (NLRB) and Boeing didn't satisfy the agency's push for controversial stances. And permitting unions to organize micro-bargaining units—allowing unions to decide whether the bargaining unit will consist of all workers or a much-smaller group of workers who share a "community of interest"—hasn't been the only controversial proposal floated by the agency.
The micro-bargaining unit decision came from the case Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), where the board ruled that nursing assistants may form a bargaining unit—a so-called "micro-bargaining unit"—without including other employees at the facility in the unit.
Here are five more changes that affect union and nonunion workplaces—four spearheaded by the NLRB and another by the U.S. Department of Labor—that experts say are among the most troubling from employers' perspective.
Courts have put the brakes on two of the most controversial proposed changes—speeded-up union elections and a mandate to display a "labor rights" poster. But three others are advancing.
So-called "quickie" election regulations, which came into effect at the end of April, postponed employers' challenges to members of a proposed bargaining unit. The regulations cut the average time period from petition until election to an estimated 20 days, about half of the 38-day median for 2010 and 2011. Thirty-eight days is not a long period but, employers claim, provides enough time to make their cases. In 2011, 91.7 percent of all initial representation elections were held within 56 days of filing petitions.
But after the NLRB had begun processing 150 petitions under the new regulations, the U.S. District Court for the District of Columbia on May 15 invalidated the regulations. In a challenge brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, the court ruled that, in adopting them on Dec. 16, 2011, the board acted without a legal quorum. Three members needed to participate in the vote, but only two did. The fact that only two positive votes were required and two were cast was not sufficient. The third member, whose opposition was presumed, had to participate as well—if only to abstain or vote nay, Judge James E. Boasberg explained.
The judge's decision was based solely on procedural grounds. He noted that his ruling "need not spell the end of the final rule for all time. … Nothing appears to prevent a properly constituted quorum of the board from voting to adopt the rule."
On May 15, in compliance with the decision, the NLRB announced that it "has temporarily suspended the implementation of the rule changes." Among its options are to appeal the decision or to vote again with a proper quorum. Whatever action the board decides on, it seems likely that quickie election regulations will be back on the agenda and employers will raise challenges.
"Put together the quickie election and the micro-unit ruling and you have a 'double whammy' that would tilt the playing field in favor of labor," says Alan D. Berkowitz, a partner in the Labor and Employment Practice of Dechert LLP in Philadelphia.
Kate Bronfenbrenner, director of labor education research at Cornell University's School of Industrial and Labor Relations, says that 47 percent of serious unfair labor practice charges against employers—discharges, harassment, changes in benefits—happen in the weeks before the petition is even filed. Eighty percent happen from before the petition is filed to within two weeks after. The shorter the time period between the filing of a petition and the election date, "the less time the employer has to continue to oppose and delay," she remarks.
Employers question Bronfenbrenner's conclusions. "Charges of unfair labor practices are allegations and, unfortunately, people make all kinds of claims that may not be true," says Mark Theodore, a partner with Proskauer Rose LLP in Los Angeles. "Follow the charges through to conclusion to learn if they actually were substantiated."
The NLRB's regional directors investigate unfair labor practice charges to determine if they have merit and should be prosecuted before an administrative law judge. Since 1980, 32 percent to 40 percent of all charges made the cut. In 2011, 37 percent of 16,881 charges filed by employees and unions were deemed meritorious. More than 90 percent were settled without hearings.
Employers, especially smaller ones, say they often don't know about union interest until a petition is filed. Often, they do not have expertise on staff or on call. "The employer might have only 15 days to gear up while the union has been preparing for three to six months," Berkowitz explains.
The claim that small employers are blindsided is overstated, says Esta Bigler, director of the Labor and Employment Law Program at Cornell's School of Industrial and Labor Relations. Small employers "know early on if there is union activity," she says.
"People squeal," agrees Charles B. Craver, a law professor at George Washington University Law School in Washington, D.C.
"The compressed time period will pressure employers into violating the law," predicts Steven Bernstein, a partner with Fisher & Phillips LLP. Supervisors are "more likely to screw up."
Premium Bulletin Board Space
On April 17, the U.S. Circuit Court of Appeals for the District of Columbia temporarily blocked the NLRB from implementing a mandate requiring employers to display a labor rights poster measuring 11 inches by 17 inches.
The requirement was "an unprecedented attempt by the board to assert power and authority it does not possess," says Jay Timmons, president and chief executive officer of the National Association of Manufacturers in Washington, D.C.
The poster explains a worker's right to form, join or assist a union, or to discuss or act in concert with one or more co-workers in matters relating to working conditions. It is estimated that 6 million businesses, many union-free, will have to allocate space for the notice on their bulletin boards.
There are advantages to requiring the poster, Bronfenbrenner says. "It tells workers what their rights are, who to call if they have a problem, and what is legal and not legal. It will remind them that employers are not supposed to do many of the things they do in the face of an organizing drive, but that they assume are legal."
The mandate is not popular with employers. They "see the poster as an ad for unions," says Jim Gray, a labor management consultant. "But it isn't a big deal. The information is no different than what you can find on the Internet."
Small employers are vexed, says Michael Eastman, executive director of labor policy at the U.S. Chamber of Commerce in Washington, D.C.: "They think the language of the notice is biased. Some are talking about adding their own notices with information they believe is more comprehensive. My advice is not to do this without prior consultation with an expert."
On Jan. 30, 2009, President Barack Obama signed Executive Order 13496 imposing a similar posting requirement on federal contractors. Apparently, it has created few questions and basically no organizing activity. Still, employer advocates predict that if the NLRB prevails on appeal, the posting requirement will encourage organizing activities.
Social Media and Concerted Action
The NLRB's focus on workers' social media communications is perhaps the best example of how board members are extending the reach of the National Labor Relations Act to nonunion workplaces. Whether they are union members or not, employees are entitled under the act to communicate with each other about matters relating to the terms and conditions of employment. Access to social media expands the opportunity and audience.
In nonunion shops, employers can still include policies in employee handbooks that prohibit workers from engaging in activities or communications that damage the company and its reputation. Individual gripes and complaints not made in relation to group activity among employees are not protected.
"If I go too far, say things that are extremely negative, or challenge the quality of the product or services, I can be terminated," Craver says. "But if I say something that relates to the terms and conditions of employment, it will be protected."
Card-Check Rules Eased
In the absence of a law like the proposed Employee Free Choice Act, recognition of a union through signed cards requires a willing employer. To be eligible, a union must produce authorization cards from a majority of workers in the bargaining unit. In contrast, NLRB-sanctioned secret-ballot elections require only a majority of workers actually voting.
In reversing the decision in Dana Corp., 351 NLRB 434 (2007), the board gave unions that gain representation through card checks more time to prove their value. Dana permitted decertification to begin within the first 45 days after the employer voluntarily recognized the union.
In Lamons Gasket Co., 357 NLRB No. 72 (2011), union advocates argued that making a union fight a challenge so soon was unfair, prematurely opening the door to buyer's remorse on the part of workers. New unions were not being given enough time to settle in and negotiate a contract. On Aug. 26, 2011, the NLRB, in a 3-1 vote, sided with labor. It held that decertification petitions should not be permitted for a reasonable period of time after recognition, from six months to a year.
Shining a Light on 'Persuaders'
Since 1959, under Section 203 of the Labor-Management Reporting and Disclosure Act, the U.S. Department of Labor has exempted employers, and the consultants and attorneys they hire to advise them and help design campaigns to counter union organizing, from disclosing their relationships with each other. Identification of the activities undertaken, costs incurred or income generated from everything except actual face-to-face persuader contact with workers was privileged.
Now, under a revised persuader rule scheduled to take effect in August, the exemption will be lifted, requiring full disclosure from the employer side. Labor Department officials say the change will increase transparency in battles for workers' hearts and minds. Employers counter that it will have a chilling effect on their ability to hire talent to represent their interests.
"It puts pressure on employers who may not want to disclose," says Michael Lotito, a Littler Mendelson attorney. "When I go out and get help, I find out it's reportable. When I spend $25,000 for experts to check out my workplace, the next thing I know I'm being slammed for the expenditure. Who needs it?"
"It will drive a lot of the people who are making sure employers are doing things lawfully out of the marketplace, because employers will be reluctant to disclose who they are and what they are paying," Gray says.
Berkowitz adds, "The privacy of these communications is being called into question. It's an attempt to embarrass people by shining a light on them. It's particularly scary for lawyers."
The author, a contributing editor of HR Magazine, is a lawyer and a professor of management studies at Marist College in Poughkeepsie, N.Y.
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