The polls are closed, the votes are counted, and the results are in: President Obama will remain in office for another four years. This much, of course, is old news. But what the days since the election have provided is time to think about what it means for employers interested in labor law issues. Here are five areas labor professionals will want to monitor as the President's second term approaches:
- NLRB Membership. There are currently four members on the NLRB. Two have been confirmed by the Senate and two hold recess appointments. Those recess appointments have been challenged in various proceedings on the ground that the Senate wasn't actually in recess in January 2012, and thus the appointments are unlawful. If not invalidated by court action, these two recess appointees, Member Block (D) and Member Griffin (D), should serve until near the end of 2013. Of the two confirmed appointees, Member Hayes' term expires on December 16, 2012. Member Hayes is the only Republican currently serving on the NLRB. Labor professionals will want to watch for court action on the recess appointment issue, as well as whether the President attempts to obtain Senate approval next year of any additional NLRB members.
- Notice Posting Rule. The fate of the rule requiring employers to post a notice of employee rights under the NLRA, including the right to engage in concerted activity and union organizing, now rests with the courts. Without a change in administration, the NLRB will surely continue to press its position that the poster requirement is lawful. Thus, watch for the ruling from the District of Columbia Circuit Court of Appeals, which will likely issue later this year or early next. An appeal to the Supreme Court on this important issue isn't out of the question.
- Persuader Rule. Since the comment period closed on the DOL's rule redefining (and substantially expanding) the concept of "persuader" activity, the DOL has been remarkably quiet. With the election over, and a second term set to begin, labor professionals should watch out for publication of a final rule. The rule has drawn many negative comments, including one from the American Bar Association, which commented against the rule insofar as it applied to attorneys based on fears about the rule jeopardizing the attorney-client privilege. The implications of this rule for employers, particularly those whose employees are currently non-union, are very serious. Employers should, therefore, discuss this rulemaking activity with qualified labor counsel.
- The Election Rule. Late last year, the NLRB issued a final rule changing some of its election procedures. That rule was to have gone into effect on April 30, 2012, but was successfully challenged in federal court. The judge declared the rule invalid because of a procedural issue associated with voting on the rule. Labor professionals should expect continued rulemaking activity in this area. In fact, in a recent case (pdf), the NLRB explicitly referenced the pending rulemaking on the election process as a vehicle for changing its policy on so-called "blocking charges" -- that is, unfair labor practice charges that are filed while a union election petition is pending.
- Protected, Concerted Activity. During the President's first term, the NLRB moved aggressively to protect the concept of concerted activity. Evidence of this effort is found in the NLRB's web page dedicated to the issue, the numerous decisions invalidating relatively innocuous sounding policy language, and even the notice posting rule. Look for the NLRB to continue this focus in cases involving, for example, employee handbook policies and adverse employment decisions based on employee activity on social media.
The common theme in all of these areas is to make it easier for unions to organize employees or for employees to challenge employer actions. Labor professionals addressing these issues will need to plan carefully to ensure that their response to these developments is lawful and appropriate.