The National Labor Relations Board took a number of actions to tilt the balance of U.S. labor policy in favor of unions during President Barack Obama’s first term. What labor relations challenges can employers expect in 2013 and beyond? Jackson Lewis Partners Philip Rosen and Michael Stief conducted a one-hour webinar entitled, “Election 2012: A Post-Election Analysis of the Labor Relations Implications for Employers,” providing critical insight into ongoing developments and post-election priorities at the NLRB.

After noting that President Obama’s victory ensures that the NLRB will continue to maintain a Democrat majority, the presenters summarized the status of several key recent rulemaking initiatives. Mr. Rosen and Mr. Stief reported on the following:

  • Notice Posting: The Board issued its final rule on the “Notification of Employee Rights under the National Labor Relations Act” on August 25, 2011. The rule, which was last scheduled to take effect on April 30, 2012, would require that all employers covered by the National Labor Relations Act conspicuously post a notice informing employees of their right to organize and engage in other protected activities. An emergency injunction was granted by the U.S. Court of Appeals for the District of Columbia Circuit on April 17, 2012, preventing the NLRB from implementing the rule. Another decision (in which a South Carolina federal district court found that in promulgating its final rule, the NLRB exceeded its authority, in violation of the Administrative Procedure Act) is currently on appeal before the U.S. Court of Appeals for the Fourth Circuit in Richmond. A decision from the D.C. Circuit is expected in early 2013.
  • Accelerated Elections: The federal district court for the District of Columbia ruled that the NLRB’s “expedited election” rule, scheduled to take effect on April 30, 2012, is invalid because only two Board Members, instead of the three needed to make up a Board quorum, participated in the final vote. The rule, which the Board rushed to finalize at the end of 2011, would eliminate certain pre-election rights of employees and employers, especially shortening the time before a representation election takes place. The court also rejected an NLRB motion to alter or amend the judgment, again finding that the rule could not stand without the required quorum. The Board has appealed the federal court’s decision to the D.C. Circuit Court of Appeals. 

The presenters next provided an overview of how the NLRB might expand other existing initiatives. The Board’s “protected concerted activity” initiative, according to the presenters, is creating a significant opportunity for unrepresented employees to contest employer policies and practices. Employers should take a close look at their policies on social media, class action waivers, confidentiality of investigations and other workplace programs, the presenters advised. Another area of focus may be smaller bargaining units made possible by the Board’s Specialty Healthcare decision, currently on appeal. If the U.S. Court of Appeals for the Sixth Circuit upholds the Board’s decision, increased organizing activity is widely anticipated. A ruling is expected next spring.  

The webinar also covered developments at the Department of Labor that would impact employers significantly, particularly anticipated changes to rules under the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). From the White House, additional Executive Orders may be on the horizon. Legislation, on the other hand, Mr. Rosen and Mr. Stief said, is unlikely with a sharply-divided Congress.

Beyond the new rules and union-friendly decisions coming from the Board, employers also must be mindful of the collective bargaining implications of the Patient Protection and Affordable Care Act, particularly with respect to major changes scheduled to take effect in 2014. 

The presentation concluded with a number of best practice recommendations for employer consideration.

“Election 2012: A Post-Election Analysis of the Labor Relations Implications for Employers” can be viewed at any time by clicking here.