NLRB Outlook For 2012: More Labor Favoritism

Saturday, March 24, 2012 - 07:45

When Congress passed the National Labor Relations Act (NLRA) in 1935, President Franklin D. Roosevelt said “a better relationship between labor and management is the high purpose of this Act.” The law created the National Labor Relations Board (NLRB) as an “independent quasi-judicial body” to hear cases and render decisions when disputes between employers and unions arose. Most important to that end was the notion that the NLRB would stand as an impartial arbiter in those situations, much like its judicial cousins in the American court system.

Regrettably, in the last few years the NLRB has been dominated by a partisan majority, and it has established precedents and issued regulations with the single-minded goal of increasing union density at all costs. Observers of labor policy are well aware of the contentious issues stemming from the Board’s recent activities. Highlights (or lowlights) include the attempt to block Boeing from opening a new $1 billion factory in South Carolina, the requirement for employers to post one-sided notices about joining unions, the “ambush” election rule, the Specialty Healthcare decision allowing micro-unions, the D.R. Horton decision allowing class actions in arbitration settings, the expansion of “concerted activity” to the world of social media, and a host of other anti-employer actions.

As we entered the new year, there was some thought that 2012 might see a less frantic pace of activity from the NLRB, since the Board was slated to drop to two members and lose its quorum when Craig Becker’s recess appointment expired. Those thoughts quickly went out the window when on January 4, the President used recess appointments to put three new members on the Board, bringing it to full strength. These appointments have already been challenged as being legally dubious since the Senate did not consider itself to be in recess. A court will ultimately have the final say, but in the meantime, NLRB Chairman Mark Pearce is moving full speed ahead. As he put it: “we keep our eye on the prize.” Thus, we can expect more slanted case decisions and rulemakings that should be of significant concern to employers.

First among these could be an expansion of the ambush election rule – which has already dramatically shortened the time frame in which union representation elections take place – to include provisions Chairman Pearce left out of the rule that went final in December 2011. The additional measures – call it Ambush Elections Part II – would likely include expedited pre-election hearings that would prevent employers from having time to mount effective legal challenges to union organizing drives, electronic petition filing to speed the voting process, and a requirement that employers turn over the home phone numbers and personal e-mail addresses of their employees to union organizers. 

The Board may also pursue a “cyber” card check rule that would allow electronic, off-site voting in certification elections. This would be a dramatic departure from the Board’s tried and true practice of using secret ballot elections in the workplace (which is generally the easiest place for workers to vote, thus expanding turnout). The clear intent is to reduce the number of workers casting a ballot so that fervently pro-union employees, who are more likely to go through the process of off-site voting, will make up a larger share of the electorate.

Congress wisely put an appropriations rider in the FY 2012 Labor/HHS/Education appropriations bill preventing the NLRB from “issuing” a rule on cyber card check, but a Board majority as determined as this one may interpret that as allowing them to do everything short of issuing a rule, and then taking that formal step as soon as the rider expires. In 2010, we should remember, the Board issued a Request for Information under the Administrative Procedure Act.

Employers also should be on the lookout for a decision in the Roundy’s case dealing with union access issues. The real threat in this decision is that the Board may use it to reexamine Register Guard and rule that employer e-mail systems must be opened to union solicitations.

Another change on the horizon could include greater restrictions on the definition of supervisors, which would have two benefits for unions from the Board’s perspective. First, it would expand the pool of employees eligible to unionize. Second, it would shrink the number of front-line supervisors an employer could rely upon during an organizing effort.

Finally, the Board may swing for the fences and reconsider a rule on so-called members-only unions. A members-only union rule would upend the traditional concept of a collective bargaining unit by allowing groups of employees to spontaneously come together and declare themselves to be a union without the hassle of an NLRB election — or any election for that matter. Such a members-only union could consist of just two or three workers, but employers would have to collectively bargain with them all the same. Bargaining units could proliferate throughout a workplace with no warning, creating complete chaos for managers and workers alike.

While this concept may seem far-fetched, the Board has in the recent past received petitions to issue a rule on members-only unions, and a lengthy report from dozens of law professors and other scholars has laid out the purported rationale for such a rule, and the (supposedly) supporting case law. Last year the NLRB very quietly declined a petition on members-only unions, but with several new members it could easily decide to revisit this issue.

Over the past three years, the actions of the NLRB have exemplified a radically different view of the Board’s role in labor-management relations. Instead of acting as an impartial, or even relatively impartial, administrator of the law, the Board’s majority has acted as though its mission is to expand the reach and power of unions throughout the economy. Unfortunately for workers, employers and the prospect for robust growth, it looks like more of the same is on tap for 2012.

Glenn Spencer is Vice President, Workforce Freedom Initiative, U.S. Chamber of Commerce.

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