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National Labor Relations Act
D.C. Court Strikes Down NLRB’s New “Quickie Election” Procedures
Written by admin
Wednesday, 16 May 2012 06:40

On May 14, 2012, a federal district court in Washington, D.C. struck down the NLRB’s new Quickie Election (or “Ambush Election”) procedures based on the conclusion that the the NLRB failed to assemble a quorum of members when it made its “final vote” on the proposed new rules.

Under the National Labor Relations Act and a Supreme Court case called New Process Steele, three (or more) members of the Board are required to constitute a quorum for Board action.  In this case, only two Board members participated in the final vote to approve the new Quickie Election procedures.  Therefore, the D.C. court concluded, the final vote on the new Quickie Election procedures was made without a quorum.

In creating the “Woody Allen Rule,” the D.C. court noted:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to satisfying a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters – even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal quote in question, the Court must hold that the challenged rule is invalid.

Following the court’s decision, the NLRB issued a press release stating that it will temporarily suspend the new Quickie Election procedures.  The Acting General Counsel has also instructed regional directors to revert to the old representation election procedures.

It will be interesting to see whether the NLRB appeals the court’s decision, or just tries to establish a quorum now that it has five sitting members, and vote again on the new representation election procedures.  Either way, the legal battles are sure to continue.

You can read the D.C. court’s decision here and the NLRB’s press release here.

 
NLRB General Counsel Issues Guidance Memo On “Quickie Election” Procedures
Written by admin
Friday, 27 April 2012 18:11

On April 26, 2012, the General Counsel (“GC”) of the National Labor Relations Board issued a Guidance Memorandum on the NLRB’s new “Quickie Election” procedures, which are set to take effect on April 30, 2012.  In the memorandum, the GC first “justified” the NLRB’s need to make changes to the way representation elections are conducted, and then outlined the major changes to the process.

In a nutshell, the changes will speed up the way representation elections are conducted, which in turn, will hinder employers’ abilities to oppose union representation campaigns.  Some people – including the U.S. Chamber of Commerce – have referred to these new procedures as “ambush” elections, because of the way that employers could be prevented from effectively challenging a union representation campaign.

For instance, the new rules eliminate the current restriction that elections cannot be held until at least 25 days after a direction of election.  In addition, the NLRB has amended – or should I say, taken away – the ways that employers can challenge whether representation elections are even appropriate or whether certain individuals should even be voting in the elections.  The NLRB has also amended – or again, should I say, taken away – employers’ rights to appeal decisions by hearing officers on pre-election rulings.  Finally, the NLRB has eliminated the practice of giving parties the right to file post-hearing briefs for pre-election hearings, and instead, has given the hearing officer discretion on whether the parties should be filing briefs.

In addition to the GC’s memo, the NLRB has also issued a set of FAQs regarding the new election procedures.

Overall, these changes are certainly bad for employers.  The U.S. Chamber has lodged a legal challenge to the new representation election procedures, but has not yet received a ruling from the court.

You can read the GC’s memo here, and the NLRB’s FAQs here.  Also, prior blog posts on this topic can be seen here and here.

 
Employers Don’t Need To Post NLRB Notice, For Now
Written by admin
Tuesday, 17 April 2012 18:02

Great news for employers!  The NLRB has issued a press release stating that it will not be implementing the rule requiring employers to post the new NLRB notice in the workplace as scheduled.  The new rule was scheduled to take effect on April 30, 2012.

In other words, employers don’t need to post the new NLRB notice in the workplace.  So, you can put those posters away in drawer someplace.  At least for now…

This announcement by the NLRB came as a result of an order issued by the D.C. Circuit Court of Appeals against the NLRB, which temporarily enjoined the NLRB’s rule requiring the posting of the employee rights poster.  The D.C. Appeals Court has set a briefing schedule for May and June 2012, and will schedule oral arguments for September 2012.  Therefore, employers don’t need to worry about the NLRB poster until September 2012 at the earliest.

You can read the D.C. Appeals Court’s order here, and the NLRB press release here.

 
South Carolina Federal Court Strikes Down NLRB Posting Rule
Written by admin
Friday, 13 April 2012 17:30

In a highly anticipated decision – in Chamber of Commerce v. NLRB -  the U.S. District Court for the District of South Carolina, Charleston Division, struck down the new NLRB rule that requires employers to post an NLRB poster (that informs employees of their rights under the National Labor Relations Act) in the workplace.  A copy of the court’s decision can be read here.

Over the past several months, the NLRB’s new posting requirement has been the subject of great controversy, and is currently set to take effect on April 30, 2012.  In light of this recent court decision, however, it will be interesting to see whether the NLRB postpones the posting requirement again.  The posting requirement had already been pushed back twice, pending legal challenges to the rule.

For the first legal challenge, on March 2, 2012, the U.S. District Court for the District of Columbia upheld the posting requirement, and ruled that the NLRB had “broad authority” to issue rules.  Accordingly, although the plaintiffs in that case appealed the court’s decision, it appeared that the new posting requirement would still take effect on April 30, 2012.

In the second legal challenge (discussed in this blog entry) the court in Chamber v. NLRB reached the opposite conclusion and invalidated the NLRB’s new posting rule.  In reaching its decision, the court noted that the Board’s authority was limited to what is necessary to carry out the provisions of the NLRA.  The court then concluded that the NLRB posting requirement was not necessary, but rather “simply useful,”  to carry out the provisions of the NLRA.  The court further explained that the role of the NLRB is to be reactive as opposed to proactive in relation to employees covered by the Act.  On this issue, the court noted that the NLRB’s posting requirement “proactively dictates employer conduct prior to the filing of any petition or charge, and such a rule is inconsistent with the Board’s reactive role under the Act.”

This ruling is good news for employers.  The fact that this decision came out of South Carolina is not entirely surprising, because South Carolina is a largely Republican state and was in the center of the dispute between the NLRB and Boeing, Inc.

In any event, the next step is to wait and see what happens with the April 30, 2012 deadline…

 
NLRB Issues Second Report on Social Media Cases
Written by admin
Wednesday, 25 January 2012 23:43

The General Counsel for the National Labor Relations Board (“NLRB”)  has just released a second report describing social media cases reviewed by his office.  This new report addresses 14 different cases.  Half of the cases involve questions about the legality of social media policies, and the other half of cases involve the discharge of employees after they posted comments about work on Facebook.

Of the policies addressed by the NLRB, five were found to be unlawful, one was lawful, and one was lawful after a revision.  For the discharged employees, several discharges were found to be unlawful because they flowed from unlawful policies.  In one case, however, the employee’s discharge was upheld, despite the existence of an unlawful policy, because the employee’s posting was not work related.

In addition, the General Counsel has also asked all regional offices of the NLRB to send him which the regions believe to be meritorious to the agency’s Division of Advice, located in Washington, D.C.  So far, about 75 cases have been forwarded to the office to date.

You can read a full copy of the report here.  You can also read a prior blog post on this topic here and the previous report here.