United States: NLRB Rings In the New Year: Union Election Rules And Recess Appointments

Originally published January 9, 2012

Please click here to view the related article: Full Details On Union Election Rules

The end of 2011 and beginning of 2012 has been a busy time for the National Labor Relations Board. December began with the passage of a controversial new rule that will almost certainly result in quicker union elections, thus narrowing the window of time employers have to respond to union organizing campaigns, and ended with the postponement of the effective date of the rule requiring employers to post a notice of employee rights under the NLRA. In addition, there has been a flurry of political posturing involving Board members, Congress, and the President, capped off last week by the White House announcement that President Obama intends to make recess appointments of three nominees to Board positions, bypassing the need to obtain Senate confirmation. We take each of these in turn.

New Rule Shortens Time Frame for Elections

On November 30, 2011 the Board passed a resolution consisting of rules reform concerning union representation elections and the appeals process. The final rule was published on December 22 and is due to take effect on April 30, 2012. Although the final rule represents only a portion of the comprehensive election reform that was initially proposed last summer, it will likely have a direct impact on the ability of unions to effectively and quickly obtain recognition.

In sum, the final rule provides for a shorter time period between the direction by the Board of an election to determine whether a union has majority support of employees and the election date, thus limiting the time period during which an employer can state its case against a union. In addition, the final rule limits the issues that can be raised in a pre-election hearing and the parties' ability to appeal determination of those issues. The intent of the rule is clear – to expedite the holding of representation elections and decrease "litigation" in connection with those elections.

One lawsuit challenging the legality of the final rule has already been filed and Congress has taken action in an attempt to overturn or block implementation of the rule. Nevertheless, employers should be prepared to respond quickly to any union organizing campaign in order to mitigate any negative impact of the rule if it does, in fact, go into effect. Please do not hesitate to contact us if you have any concern that union organizing is in your midst.

For more detail on the exact changes the final rule made to union representation election procedures, click here.

Poster Delayed Again

2011 ended with some good news for employers. On December 23, the Board announced that it has agreed to postpone the effective date of its "employee rights" posting requirement at the request of the federal court hearing a legal challenge to the rule. As you may recall, in September 2011, the Board issued the rule requiring the posting of a specific notice concerning employee rights under the NLRA. Click here for our prior alert on this rule. The rule was initially scheduled to go into effect in November, but in October the Board delayed the effective date of the rule until January 31, 2012. With this latest postponement, the new implementation date is April 30, 2012. Given that the postponement is intended to "facilitate the resolution of the legal challenges that have been filed with respect to the rule," it certainly seems possible if not likely that yet another implementation postponement could occur if the lawsuits challenging the rule are not resolved by April, 2012. We will let you know if and when employers must post the notice, but for now, sit tight.

Loss of Quorum and Recess Appointments

With the New Year came the expiration of Craig Becker's term on the Board. You may recall that Member Becker's appointment was a "recess" appointment by President Obama, who was not able to obtain Senate confirmation of Mr. Becker, a controversial former general counsel for the SEIU. With the expiration of Becker's term, the Board would only have had 2 members, an insufficient number to constitute a quorum to issue decisions or rules.

Last week, the White House announced that President Obama will make recess appointments to fill the three vacancies on the Board and restore the necessary quorum. The nominees are Sharon Block, a Democratic Department of Labor attorney; Richard Griffin, a Democratic union-side attorney; and Terence Flynn, a Republican NLRB counsel.

The President's ability to make recess appointments may be challenged by Senate Republicans, who had issued an open letter to President Obama in December warning him against making recess appointments and scheduled "pro-forma" sessions to take place during the January recess in an attempt to deprive the President of recess appointment power. Regardless of any legal challenge, however, the recess appointments will be effective, at least pending the resolution of such challenge. With these appointments, the Board now has the quorum necessary to continue to issue rules and decisions. The Democratic majority on the Board may well pick up where the last Board left off – considering and potentially passing the remaining proposals concerning comprehensive union election reform.

What's Next?

One thing is certain in this election year: the NLRB will continue to be a battle ground, likely resulting in new attempts by the Board to further aid unions in their efforts to organize. Precisely how the battle will shake out is unclear, but employers without a unionized workforce must be particularly attentive and responsive to any attempt by employees to organize in light of the changing landscape. Please let us know if you have any questions about how these changes could affect your business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.