Executive Summary: On April 10, 2015, Emory University School of Law and the Emory Law Journal presented a symposium, sponsored by FordHarrison, focused on the National Labor Relations Board (NLRB) and its recent decisions and actions. The event was held to coincide with the 80th anniversary of the passage of the National Labor Relations Act (NLRA) in 1935.
In addition to presentations from a number of prominent labor law scholars from around the country, all of the current Board members and the NLRB General Counsel attended and spoke, providing rare and enlightening insight on the Board's perspective of current critical issues. The symposium was also timely as it was held just days before the April 14, 2015, effective date of the Board's new election procedures, which were a major topic of discussion.
NLRB Chairman Mark Pearce, a Democratic appointee, hailed the new rules as a "great achievement" designed to promote efficiency, clarity, fairness, and consistency in the election process. Members Philip Miscimarra and Harry I. Johnson, III, the two Republican appointees to the Board, had voted against adoption of the new procedures. They both expressed their concerns and questioned whether the new election rules would result in fundamental unfairness to employers.
What is clear from the presentations and comments concerning the new procedures is that elections will be held much more quickly. Chairman Pearce emphasized elections are to be scheduled on the "earliest date practicable." One panelist speculated that an election could occur as soon as 11 days after the representation petition is filed. These quick elections inevitably will result in significant limits on an employer's ability to respond to the union's organizing efforts and message. Board Member Miscimarra stated that he and Member Johnson had advocated for a minimum period of time, such as 30 to 35 days, between the filing of the petition and the election, but their proposal was rejected. The Board's push to schedule elections sooner was criticized by Members Miscimarra and Johnson as requiring employees to "vote now, understand later."
Another topic of discussion was how the new rules restrict the issues that can be raised by employers at the pre-election hearings. Under the new rules, the NLRB is not required to decide eligibility issues – such as which employees are supervisors and therefore ineligible to vote – and can prohibit employers from introducing any evidence on this issue at pre-election hearings. The dissenting Board members again criticized this limitation as "election now, hearing later."
FordHarrison will be presenting a webinar on April 30, 2015, to provide further information about the Board's discussion of the new rules and our recommendations on what steps employers should take in response. Details about this webinar will be announced shortly.
In addition to the new election procedures, the symposium addressed recent cases and issues currently being presented to the Board. These topics included employees' use of employer email systems to communicate about union organizing; whether workers are employees or independent contractors; whether franchisors are joint employers of the employees of their franchisees; the Board's changed approach on what constitutes an appropriate bargaining unit; and whether collegiate student athletes should be considered employees for purposes of the NLRA. Symposium participants also discussed how the Board will respond to the changing economy. It was clear from their comments that a majority of the Board members view the NLRA as flexible enough to allow the Board to adapt to these changes and remain relevant.