What to Expect from the NLRB During Obama’s Next Four Years

 

As appearing in the Human Resources of Central Ohio (HRACO) monthly newsletter

 

What to Expect From Obama’s National Labor Relations Board Over the Next Four Years

I’m not the kind of guy who looks back and reflects on the past. I’m too busy living today and planning for tomorrow. There may be a time in the future when I contemplate my existence, remember the good ‘ol days, or reminisce about times of yore. But until then, I keep looking forward. This philosophy works well for me because I deal with the National Labor Relations Board every day. However, we need to look back at how the Board changed under Obama’s first term before exploring what to expect during his second.

The Last Four Years

In 2010, after the US Supreme Court ruled that nearly 600 NLRB decisions were invalid and needed to be reconsidered because the 2-Member Board did not have the required a 3-Member quorum, Obama unilaterally put people on the Board in contravention of established procedure.

The President used the Executive Branch’s recess appointment power to hand pick and place Craig Becker onto the NLRB. This appointment was controversial because Mr. Becker previously served as counsel for the AFL-CIO and the SEIU, was a staunch supporter of the Employee Free Choice Act, and his “writings clearly indicate[d] that he would use his position on the NLRB to institute far-reaching changes in labor law far exceeding the Board’s authority and bypassing the role of Congress.” For example, Mr. Becker has written, “employers should be stripped of any legally cognizable interest in their employee’s election representative,” which means companies should not be allowed to campaign against unionization, representation elections should not be held, and card check is the only way to determine whether a non-union company becomes unionized.

Obama continued using recess appointments to place additional Members on the Board instead of having them vetted and confirmed by Congress as has historically been the law and custom of this country.

The President made three additional “recess” appointments to the NLRB in January 2012 that sparked outcry from Republican Congressmen because the appointments likely occurred while Congress was not officially on break. Thus, the appointments may not be valid and all cases decided since January 2012 might not be valid – just like the 600 cases that were invalidated in 2010. The 3 appointed Board Members, as expected, have furthered the Administration’s pro-union agenda and have implemented many additional pro-union rules.

Some argue that in Obama’s quest to stack the Board with Members who will carry out his agenda, he is callously indifferent to Constitutional and statutory procedures and precedent and would rather have extreme labor laws in place, even for a short period of time before being invalidated or overruled by federal courts, than to seek change via traditional methods. I don’t believe this ideology to be true, but considering the number of recess appointments, invalidated cases, and the Board’s recent focus on non-union workplaces, I can see merit to the argument.

Over the last four years, the Board has taken action through adjudication (new decisions that overturn or expand existing case law) and rulemaking that broadens the National Labor Relations Act’s impact and makes it easier for unions to organize workers, i.e the Notice of Employee Rights poster requirement (if upheld by the courts), the expedited election rule (if upheld by the courts), bargaining unit composition changes (micro-units), and the Board’s attack of policies in handbooks of non-union companies (at-will clauses, confidentiality during investigations, arbitration clauses, and social media policies to name a few).

The Next Four Years

The National Labor Relation Board’s employee-friendly agenda will continue throughout Obama’s second term. The President will continue to control appointments to the NLRB and the NLRB will continue to interpret the laws very broadly so as to foster unionization and enforce the laws very aggressively. I expect four main topics to impact labor relations over the next four years: 1) shorter election cycles; 2) the persuader rule will take effect; 3) a resurgence of the notice posting rule; and 4) a continued pro-union agenda.

First, last year the Board tried to reduce the period of time for an election to take place after a union has filed a petition to represent a group of employees. As I’ve written before, shorter election periods benefit unions, since unions can start to campaign long before employers ever know of the organizing drive. For example, if you were told a union election was going to occur in 7 days from today, you would probably feel you needed additional time to campaign against unionization and to espouse the virtues of working in a union-free environment. A federal court rendered the shortened election campaign period rule invalid – but only because of a technicality. Since the Board continues to talk about it, I anticipate it will try to implement this rule again.

Second, a rule that impacts all of my clients is the persuader rule. This rule seeks to force companies to disclose to the federal government where and from whom they received labor relations advice and how much they paid for that advice. This disclosure could be as simple as spending $20 at a HRACO or SHRM seminar to earn continuing education credits to spending much more than that on attorneys to defend a union organizing drive and a multitude of unfair labor practice charges. Even though the rule is not in effect, my clients and I both receive letters from the federal government seeking this information. We do not respond to those letters since this law is not in effect yet, and I believe this information is protected by the attorney-client privilege.

Third, the notice posting rule will make headlines, again. Currently, the rule that requires most private sector employers to post a notice informing employees of their right to form, join, or assist a labor union is being scrutinized in federal court as to whether the Board had the authority to create such a rule in the first place. In my opinion, this decision is the most important legal development regarding the National Labor Relations Board during Obama’s Presidency. If upheld, the Board will have broad latitude to make similar rules. If invalidated, the Board’s rulemaking powers will be kept in check.

Fourth, the Board will continue to infiltrate non-union workplaces to advance its pro-union agenda. I believe that the rules regarding social media, at-will clauses, and confidentiality during pending investigations are just the tip of the iceberg. Here are some other developments I would not be surprised to see:

• Unions granted equal access to non-union workplaces to recruit and organize potential bargaining unit members;
• Employer’s email system will be available for union organizing purposes;
• Card check, in some form, is likely;
• Electronic or mail-in ballots will become the Board’s preferred method of voting thus providing opportunities for manipulated election results; and
• Temporary workers will have the right to organize along with regular, full time employees.

What to Do Next

As you can tell, changes with the NLRB come fast and furious. In an effort to keep HRACO members up to date on the latest developments in labor relations, HRACO is launching its Labor Relations Special Interest Group in January, 2013. Each month I will lead a discussion and answer questions regarding labor relations. If you have an interest in attending this exciting new SIG, please let us know by clicking here and sending me an email that expresses your interest so we will have a better understanding of the size of room to reserve. Together, we will stay a step ahead of these constantly changing laws.

Matt Austin is a Columbus, Ohio labor lawyer who owns Austin Legal, LLC, a boutique law firm that limits its representation to employers dealing with labor, employment, and OSHA matters. Matt can be reached by email at Matt.Austin@Austin-Legal.com or by phone at 614.285.5342.