The mid-point of Summer has passed. Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer. In a typical year, August and September are the busiest months for the NLRB, because the federal government's fiscal year ends September 30. During the final weeks of the fiscal year the NLRB attempts to push out as many decisions as it can. The agency is largely statistically driven, and so more decisions means a greater justification for a renewed or increased budget.
This, of course, is not a typical year. The current NLRB has a very active, if not activist, agenda. There not only are a number of potentially far-reaching cases it has yet to decide, but the agency also has proposed rulemaking to drastically upend the current manner in which representation elections are held. Add into the mix Chairman Liebman's appointment is set to expire on August 27, one can expect a storm of activity from the NLRB in the coming weeks. Here is a snapshot of the important cases and the rulemaking initiatives currently pending:
- Speciality Healthcare (NLRB Case No. 15-RC-8773). In this case, the NLRB wondered aloud whether it could set a presumptive rule for the appropriateness of bargaining units in certain segments of the healthcare industry. The problem, of course, is that anyone who has worked in business environment knows that there is no uniformity to how an employer structures its business, even within industries. A decision holding otherwise will make it much easier for unions to organize because it will remove Section 9(b) of the Act's requirement that the NLRB actually decide, on a case by case basis, the appropriateness of a unit. We posted in detail on this important issue in March after we filed a brief on behalf of Retail Industry Leaders Association.
- Lamons Gasket Company (NLRB Case No. 16-RD-1597). In this case the NLRB may revisit (read- overturn) the exception to the voluntary recognition bar set forth in Dana Corp Metaldyne, 351 NLRB 434 (2007).pdf. In Dana, the NLRB set a rule where employees may challenge voluntary recognition of a union by their employer by filing a petition for an election within a certain period of time. With all the discussion about the NLRB's processes, the NLRB in Dana pointed out something that sometimes gets lost in the debate. "Finally, although critics of the Board election process claim that an employer opposed to union representation has a one-sided advantage to exert pressure on its employees throughout each workday of an election campaign, the fact remains that the Board will invalidate elections affected by improper electioneering tactics, and an employee's expression of choice is exercised by casting a ballot in private. There are no comparable safeguards in the voluntary recognition process." Id. at 439.
- Hawaii Tribune Herald (NLRB Case No. 37-CA-7043 et al.). This is another case where the NLRB invited interested parties to file briefs about whether it should it should change its 32 year rule that witness statements made to the emloyer need not be turned over to the union prior to an arbitration hearing. As noted in the previous post on this issue, the NLRB's rule is designed to protect the witnesses from intimidation. A reversal of this decades old rule will change the way arbitration cases are handled.
- D.R. Horton (NLRB Case No. 12-CA-25764). The NLRB invited briefs on the issue of whether an employer's requirement that each employee sign an arbitration agreement which expressly waives the right to class action relief violated Section 8(a)(1). We previously posted on this important issue. The issue in this case really comes down to whether "all" group activity, no matter what the nature, is also "protected, concerted" activity under Section 7 of the NLRA. We filed a Brief for the Retail Industry Leaders Association -- Amicus Curiae.pdf on this issue. While one can certainly see the similarities between Section 7 activity and employees who wish to bring a class action against their employer, there are also important distinguishing factors. The entire NLRA concept of group activity is designed to have employees acting in concert toward a common goal; there is interaction and cohesiveness. Under the NLRA, the group must achieve majority status before it can act on behalf of the whole. In many class actions, the opposite is often true. The vast majority of employees are not even aware the lawsuit is pending. In many cases the "class representatives," often a tiny fraction of an overall workforce, can settle the entire matter (for their own benefit, of course), and then notify the rest of the employees what happened. There are great differences between the two types of activity.
- Rulemaking. Of course, the NLRB has moved forward with its efforts to force "quickie elections" on employers through rulemaking. The NLRB held hearings on the matter on July 18-19. The changes, if promulgated, would reduce the amount of time between the filing of a petition and the election from about 42 days now to far fewer days. The need for such drastic change is mystifying. The NLRB itself in its own Performance and Accountability Report FY 2010.pdf stated that it met or exceeded its strategic goals for processing representation petitions, which raises serious questions of the necessity for such drastic changes. The U.S. Chamber of Commerce has drafted a very good Fact Sheet On Quickie Elections.pdf detailing the proposed rules, and how they would change the current process. Comments on the rulemaking are due August 22, 2011, so employers who wish to get involved should draft comments to the NLRB (there is a draft letter in the U.S. Chamber's materials).
As one can see, a storm of NLRB activity is headed this way. We will certainly be monitoring it as its clouds continue to gather. Employers need to prepare for the possibility that many areas of NLRB law and process, some decades old, will be changed in the coming weeks. We will, of course keep you posted on all developments as they occur.