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Employers Beware: NLRB Promotes Union Organizing

Posted on Mon, Apr 30, 2012 @ 12:14 PM

Robert J. Hollingsworthby Robert J. Hollingsworth

While the NLRB’s new Employee Rights Notice has recently generated substantial media attention, there are two other developments at the NLRB that could have a far greater impact on employers, especially smaller employers who are not prepared to deal with union organizing.

On December 16, 2011, the NLRB approved new election rules to be effective on April 30, 2012.  These new rules are sometimes colorfully described as the “Ambush” or “Quickie” Election Rules.  By streamlining the processing of election cases, the NLRB under these new rules plans to hold elections within about 10 to 21 days from the date of the petition for election is filed.  This “streamlining” is largely achieved in two ways: (1) by deferring most of the traditional pre-election issues (e.g., whether a particular employee is an exempt supervisor who cannot vote in the election) until after the election; and (2) by eliminating the practice of scheduling elections 25-30 days after the Regional Director directs an election.

To be sure, there has been significant criticism of these new election rules.  At least one lawsuit has been filed challenging the rules.  But so far we are not aware that any court has blocked these rules from taking effect on April 30, 2012.

The other related development at the NLRB is its recent recognition of “micro” bargaining units.  Historically, the Board has favored larger bargaining units where the employees share a community of interest.  In recent rulings, however, starting with Specialty Healthcare, 357 NLRB No. 83 (August 21, 2011), the Board has recognized the “micro” bargaining unit requested by the union, even though the petitioned-for bargaining unit could be appropriately placed in a larger unit.  As long as the smaller unit is identifiable as a group (e.g., by job title, classification, etc.), the Board will approve this smaller group unless the employer opposing the smaller unit demonstrates that employees in the larger unit share an “overwhelming” community of interest with those in the unit petitioned-for by the union.  In other words, the union will get the bargaining unit it wants even though a larger unit would be equally or even more appropriate than the smaller unit.

In sum, the NLRB will allow unions to organize smaller bargaining units that previously would have been viewed as inappropriate because of the community of interest with those in the larger unit.  The effect of this will be to allow unions to nibble at employers with organizing focused on small bargaining units.  Organizing smaller units will also be easier and less expensive for unions.  Once a union gains a foothold by organizing a micro unit, the union can then turn its attention on other smaller units in the workplace or could go after the larger bargaining unit.

Together the quickie election procedures and the unions’ ability to organize micro units present a formidable problem for any employer, particularly small or unprepared employers who do not have a union avoidance program in place.  Conducting an election campaign—obtaining professional advice, training supervisors, gathering information for the campaign, meetings and communications with employees—in less than three weeks will be overwhelming for unprepared employers. 

Employers should therefore consider whether they are ready for a union election.  If you are not ready, seek professional advice.  Cors & Bassett attorneys have many years of experience dealing with union organization efforts.

Tags: Employee Rights Notice, Quickie Election Rules, Specialty Healthcare, Union Organization, NLRB, National Labor Relations Board

UPDATE: NLRB Posting Rule on Hold

Posted on Mon, Apr 23, 2012 @ 09:13 AM

describe the imageRobert J. Hollingsworth

Court Blocks NLRB Employee Rights Notice Posting Requirement

On April 17, 2012, the Court of Appeals for the District of Columbia temporarily blocked implementation of the NLRB's new rule requiring private sector employers to post the NLRB's Employee Rights notice.  Additionally, on April 13, 2012, a federal district court in South Carolina ruled that the NLRB lacked authority to promulgate the notice rule.  In light of these rulings, the NLRB announced that it "will not implement the rule pending resolution of the issues before the court."

The fate of the posting rule is now unclear.  While federal courts have the authority to decide whether the posting rule is valid, even if the rule is ultimately upheld by the courts, the fate of the rule may still be decided by the presidential election in November.  If the election results in a Republican majority appointed to the NLRB, the Board could scrap the notice rule.

Stay tuned.  We will report new developments and details as they become available.

Tags: Labor & Employment, National Labor Relations Board (NLRB), Unfair Labor Practices (ULP), Employee Rights Notice

Court Upholds NLRB Employee Rights Notice

Posted on Fri, Mar 16, 2012 @ 10:05 AM

Robert Hollingsworth, Labor & EmploymentBy Robert Hollingsworth

Employee Rights Notice Must Be Posted By April 30, 2012

On March 2, 2012, the U.S. District Court for the District of Columbia upheld the NLRB’s right to require employers to post the NLRB’s Employee Rights Notice.  This Notice informs employees in the private sector of their rights under the National Labor Relations Act to engage in “protected concerted activity.”  In a 46-page opinion, the District Court rejected all of the challenges made by the National Association of Manufacturers to the NLRB’s authority to require employers to post the Notice.

This Notice must be posted by April 30, 2012.  It is available in English and 26 other languages at the following webpage:  www.nlrb.gov/poster.

There was some consolation for employers in the Court’s decision. 

The Court struck down two of the penalties prescribed by the Board for an employer’s failure to post the Notice.  The NLRB’s Final Rule on the Notice provided that the failure to post the Notice would be an independent unfair labor practice (ULP) and would suspend the six-month statute of limitations for other ULP’s (i.e., the charging party would have more than six months to file a ULP charge).  The Court ruled that the NLRB lacked authority to expand the statutory list of unfair labor practices, or to change the statute of limitations.  But the Court also indicated that an employer’s failure to post the Notice might be properly used by the NLRB in other ULP cases against the noncompliant employer as evidence of the employer’s unlawful motive.

National Association of Manufacturers v. NLRB, Case No. 11-1629 (D.C. March 2, 2012)

Tags: Labor & Employment, National Labor Relations Board (NLRB), Unfair Labor Practices (ULP), Employee Rights Notice, National Association of Manufacturers