United States: NLRB Issues Reversal Of Obama-Era Precedent On Settlements And Seeks Comment On Quickie Election Rule

As anticipated, the new National Labor Relations Board Republican majority has begun a dramatic shift in labor policy.1 As the clock ticked down on Chairman Philip Miscimarra's term, which expired on December 16, 2017, and with uncertainty as to when the Republicans will regain their majority status, employers were hopeful that the Board would overturn some of the most controversial of the Obama-era policies and decisions, consistent with Miscimarra's dissents in many of those decisions.

Last week, days before the end of Chairman Miscimarra's term, the Board issued the first of a number of anticipated decisions as employers had hoped. In University of Pittsburgh Medical Center "UPMC,"2 the Board held that Administrative Law Judges (ALJs) may approve partial settlement proposals despite the General Counsel/Region and the charging party's objections to the agreement, in a return to pre-Obama precedent. In UPMC, after the ALJ severed the issue of whether UPMC was a single employer from the unfair labor practice allegations filed against one of its hospitals, UPMC moved to dismiss the single employer allegations and, at the same time, offered to guarantee the performance by it hospital of any ultimate remedial aspects of the ALJ's decision and order related to the unfair labor practice allegations. The ALJ accepted the offer and granted the partial motion to dismiss, despite objections from both the General Counsel and charging party. In its decision, the Board expressly overturned the 2016 decision of U.S. Postal Service,3 in which it had held that ALJs could not accept offered settlement terms over an objection by the General Counsel and/or charging party unless the offer was a "full remedy." In overturning U.S. Postal Service, the Board returned to the previous precedent of Independent Stave,4 which required the ALJ to weigh and assess multiple factors when deciding whether to accept a proposed partial settlement, including the reasonableness of the proposal. Pursuant to this analysis, UPMC's offer was held to be reasonable and the single employer claim dismissed. Practically, this means that the General Counsel and charging parties will no longer be able to veto the partial settlement of a charge and insist on full remedies and complete resolution when the ALJ concludes that the employer's proposed settlement is reasonable.

Then, one day after the UPMC decision was issued, the Board issued a News Release announcing that it had had approved a Request for Information to be published in the Federal Register on December 14, 2017, seeking public input on the Board's 2014 "quickie" election rule, which modified the representation election procedures.5 The Release noted that the Board's three Republican majority members had approved the Request for Information, while Democrats Mark Gaston Pearce and Lauren McFerran had dissented.

The Request for Information specifically seeks responses to the following questions:

  1. Should the 2014 Election Rule be retained without change?
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified?
  3. Should the 2014 Election Rule be rescinded? If so, should the Board revert to the Representation Election Regulations that were in effect prior to the 2014 Election Rule's adoption, or should the Board make changes to the prior Representation Election Regulations? If the Board should make changes to the prior Representation Election Regulations, what should be changed?

While the quickie election rule generated much controversy and criticism from management-side practitioners who considered the rule a "pro-union" measure, the rule has had a limited impact on the union win rate, likely as a result of employers being better prepared in advance of petition filing. In total, for fiscal year 2017, which ended September 30, 2017, 1,391 elections were held, resulting in a total union win percentage of 65%. This is a not a significant change from the pre-quickie election rule statistics of 1,453 elections with a 63% union win percentage in FY 2014, despite the median number of days from petition to election dropping from 38 days in FY 2013 and 2014, to 23 days in FY 2016.6 Still, the quickie election rule has created additional burdens for employers, and many will be encouraged by the Board's decision to revisit them.

These changes to Obama-era precedent were anticipated upon President Donald Trump's election. However, additional reversals may be curtailed until the spring of 2018, by which time Miscimarra's replacement will hopefully be confirmed.

Footnotes

1 See Michael J. Lotito et al., With the Election (Mercifully) Behind Us, What Will a Trump Administration Mean for Employers?, Littler Report (Nov. 9, 2016).

2 365 NLRB No. 154 (2017).

3 364 NLRB No. 116 (2017).

4 287 NLRB 740 (1987).

5 See Alan I. Model and Jason J. Silver, The NLRB Issues its Long-Anticipated "Quickie Election" Rule, Making Union Organizing Faster and Easier, Littler Insight (Dec. 15, 2014).

6 General Counsel's March 2017 Report on the Midwinter Meeting of the American Bar Association, Memorandum GC 1-02. Similarly, the number of days between petition and election in contested cases dropped from 59 days in FY 2013 and 2014 to 35 days in FY 2016. Id.

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Kathryn Siegel
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