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United States of America > Federal > Employment General > Trade Unions > Article > What to Expect From the New National Labor Relations Board

Article: What to Expect From the New National Labor Relations Board

For the first time in nearly ten years, the National Labor Relations Board now has a full complement of five Senate-confirmed Members.  What effect should employers expect on recent developments -- and recent attempted developments -- in traditional labor law throughout the rest of this year and the next?  Because this new Board majority has a similar philosophical disposition to its predecessors during the Obama administration, we should expect endorsement of the rationales set forth in most of the procedurally faulty 2011-2012 case decisions.  But employers should also watch for this Board to revisit some of the agency’s more notable actions called into question the past couple of years:

The Poster Rule: Two federal Courts of Appeals have invalidated the National Labor Relations Board's August 2011 rule which would require private employers to post notices in the workplace explaining employee rights under the National Labor Relations Act.  The most recent ruling by the 4th Circuit, Chamber of Commerce et al. v. National Labor Relations Board et al., No. 12-1757 (4th Cir. June 14, 2013), found express limitations on the authority of the Board, proscribing enforcement of the rule. Barring unlikely Supreme Court action to reverse these decisions, this Board initiative is not likely to go anywhere any time soon. (Federal contractors remain required to post a notice by Executive Order 13496).

"Quickie" Election Procedures: This Board is very likely, however, to revisit its effort to facilitate union organizing by drastically shortening the timeframe for Board-run union representation elections. New rules, which temporarily became effective April 30, 2012, would significantly limit pre-election adjudication and appeal of relevant legal issues; require expedited filings by employers; and, shorten the time between a direction of election and the actual voting.  A May 14, 2012 decision of the D.C. Circuit Court invalidated the rule on procedural grounds. Prior to that, however, the Board had already issued guidelines and trained regional staff in the new procedures.  There can be little doubt that, notwithstanding much public comment and controversy, the Board will return to its original proposals on this issue, and will attempt  to implement these changes once again without concern over procedural and quorum defects.  The Administration's most recent Unified Regulatory Agenda, released last month, indicates the rule's final status is "To Be Determined".

Proliferation of Micro-Unions: The 2011 Specialty Healthcare decision, which reversed decades of Board precedent and endorsed sub-unit organizing, was decided by four Board Members. Although Member Craig Becker, whose tenure was recently called into challenge by the Third Circuit, participated, there was still a valid quorum at the time of decision. Accordingly, we might expect this Board to continue to define the scope and extent to which the traditional "community of interest" test will be minimized as unions seek to organize smaller and/or cobbled-together groups of employees within workplaces.

Class Claim Waivers and Mandatory Arbitration (D.R. Horton): In early 2012, however, a three-Member panel, including Member Becker, ruled in D.R. Horton, inc., 357 NLRB No. 184 (2012), that an employer’s mandatory arbitration agreement violated the NLRA, in part, because it barred employees from bringing any class or collective actions. While the case remains on appeal before the Fifth Circuit, a recent decision of the Third Circuit calling Member Becker's recess appointment into question might invalidate the Board's decision outright. Moreover, while the D.R. Horton decision remains current Board law, at least twenty-five reviewing federal and state courts have expressly rejected the decision and its rationale. Although there is little doubt that the incoming Board will share the philosophical views of the D.R. Horton Board on the issue of class waivers, but given the decision’s wholesale rejection by the courts, it remains to be seen to what extent the new Board will seek to bolster or reiterate the holding.

Department of Labor's "Advice Exception":   While the Board has no direct impact on the DOL's radical overhaul of the "advice exception" to the LMRDA "Persuader Regs," Secretary of Labor Tom Perez was also confirmed pursuant a recent deal in the Senate. It is expected that the agency will now turn its renewed attention to its plan to implement these new rules before November 2013. These revised regulations would impose new and expansive reporting requirements on employers, their labor relations consultants and, very likely, their attorneys. If enacted, this new interpretation will represent an unprecedented intrusion into the lawyer-client relationship, and will place enhanced burdens on labor lawyers and the employers who seek their assistance and advice in response to union organizing activities. This impact on an employer's ability to receive legal advice will come at a time when all of the foregoing will necessitate such advice the most.

McKenna Long & Aldridge attorneys will continue to track these developments at our Labor Relations Today blog and its Twitter feed (@LRToday).

Last Update: 2013-Nov-30 Charles E. “Trip” Dorkey III - Dentons
The contents of this page do not constitute legal advice or create an attorney- client relationship with the contributor. Do not apply anything you read here without contacting a professional.
Author: Charles E. “Trip” Dorkey III
Law Firm: Dentons
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