The National Labor Relations Board (NLRB) has been making a case that representation elections need to be put on a faster track. When the Board originally published their “ambush elections” proposed rule, their notion of an ideal timeframe between when a petition for certification and the actual election worked out to 10-14 days. Of course, employers were concerned about such a compressed schedule for a number of practical reasons, but it also violates a fundamental sense of fairness most Americans hold with regard to elections.

While the final rule did not truncate the election time period as much as the proposed rule, it does shorten it to somewhere in the neighborhood of 20-24 days according to some experts. Employers remain concerned about the timing of these elections, because they often are not aware an organizing campaign is going on until they receive notice the petition has been filed. At that point, the employer has some tough choices to make and different rules to follow about how and what they can communicate to their employees. In short, they have serious ground to cover in order to catch up – meanwhile, the clock is ticking.

As we anxiously await the NLRB General Counsel’s Summary of Operations report for fiscal year 2011 – which according to my research results has not been issued later than February 4^th in the last ten years – I thought it would be good to go over some historical data about representation elections and paint a picture to show what’s really going on and why employers believe the Board’s ambush elections rule is a solution in search of a problem.

Over the ten-year period from 2001-2010, an average of 2,356 elections were petitioned for each year. Of that number, 89.9 percent of the petitions were agreed to by both parties. The median time it took from the time the petition was filed to the date of the election was 38.9 days. Finally, 93.8 percent were completed within 56 days – though in full disclosure I could not find data for 2001, so this number is really a nine-year average, but the yearly percentages for an election to be completed in 56 days ranged from a low of 91 percent in 2002 to a high of 95.5 percent in 2009. A chart is included below to illustrate these numbers.

What I believe the numbers show is a vast majority of petitions and elections are handled in a timely fashion – rendering the need to ‘fast track’ election unnecessary. It appears the cases taking longer than 56 days are outliers and we can reasonably infer they represent more complex cases in which there are questions about who is eligible to vote, the make-up of the collective bargaining unit or some other complication – all of which should be resolved prior to the election being held. Employees deserve to have the information they need in order to make an important decision like joining a union and employers deserve to know the rules before the results of the contest have been decided.

The Chairman of the National Labor Relations Board, Mark Pearce, made comments to reporters this week outlining several issues he would like to address in the coming year through rule making now that he has been bestowed three new members by recess appointment. Among the issues he would like to push via regulatory fiat are:

-          Requiring employers to furnish unions their employees’ personal email and phone numbers

-          Further compressing the time for representation elections

-          Expanding the use of electronic filings

Pearce goes on to share his ideas of the NLRB being a “household word” for everyone. An interesting goal to be certain, but the Chairman appears to have overlooked that the NLRB is in fact a four-letter word – if you want to characterize it as a word at all. At any rate, the four-letter word most Americans want to be more familiar with is spelled J-O-B-S.

The Board Chairman promises to anyone paying attention that, “We keep our eye on the prize.” Pray tell, Mr. Chairman, what prize are you talking about? Jobs are the prize Americans want, not the aggrandizement of a federal agency and a stacked deck in favor of organized labor.

Over the last year the NLRB has exhibited an astonishing overreach of their authority, ignored Congressional intent, and created potentially hostile work environments where none existed. The ambush elections rule, the decision in the Specialty Healthcare case, and the now-resolved complaint against the Boeing Company each had chilling effects across the manufacturing sector and overall economic growth. The NAM sued the NLRB to prevent the implementation of the “poster rule,” yet another example of a Board that has taken on an improper activist role.

Unfortunately, it looks like the President has given a green light to the NLRB to continue its activist agenda.  Yesterday President Obama announced that he will recess-appoint Sharon Block, Terence Flynn and Richard Griffin to the Board.

Perhaps Sharon Block and Richard Griffin will prove themselves to be fair arbiters of labor policy though, given their history of working for labor unions, it would seem they will bring a similar bias to the job.  The Administration has short-circuited the process, however, and they will assume their posts without the necessary scrutiny to ensure that there are no conflicts of interest – financial or otherwise. Given the impact of the Board’s decisions on jobs and our economy, these appointments warrant a thorough examination in order to avoid increasing the Board’s bias against employers and creating even greater overregulation.

The NAM will actively consider all options available to ensure that these nominations receive the deliberation and scrutiny that they deserve.

Last night, President Obama announced his picks for the two Democratic vacancies to the National Labor Relations Board. You may recall, Member Craig Becker’s recess appointment expires on December 31, which will reduce Board membership down to two and render the Board incapable of issuing case decisions or new rules. The five-member board is comprised of three seats for the party of the President and two seats for the opposition. The President nominated Terence Flynn in January to fill the open seat for the opposition.

The President’s nominees are Sharon Block, Deputy Assistant Secretary for Congressional Affairs a the Department of Labor and Richard Griffin, General Counsel for the International Union of Operating Engineers (IUOE) and serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee.

The NAM is certainly interested in learning more about the backgrounds of these nominees and will be updating our members on what we find out. At first blush, it is concerning the President has tapped yet another union general counsel for membership to the NLRB, but we will reserve judgment until we learn more about the positions and temperament of Mr. Griffin. This process has just begun and Ms. Block and Mr. Griffin have not submitted any paperwork to the Senate yet. In fact, they don’t appear to have been vetted in any meaningful way to this point.

There is some chatter about the possibility of recess appointments being attempted by President Obama to get nominees seated on the Board, but if the House stays in session, as Leadership has indicated they intend, it would be questionable whether the recess appointments could hold up under constitutional scrutiny. This holiday season is shaping up to be one to remember – stay tuned.

Late in August, the National Labor Relations Board (NLRB) finalized a rule that would require all employers subject to the National Labor Relations Act (NLRA) to post a notice in their workplaces outlining rights to organize. On September 8, the NAM filed suit against the Board claiming the NLRA does not give them the authority to require all employers to do anything. On Saturday afternoon, December 2, the Board sent a memo to their regional offices instructing them to prepare an outreach campaign to inform businesses of the requirement to post notices in their workplace on or before January 31, 2012.

While the Board has claimed, and continues to do so, the delay in the effective date of the rule has nothing to do with the litigation, and everything to do with wanting to conduct more extensive outreach, the facts and the truth demonstrate otherwise.

Upon filing the suit, the NAM requested the Board delay the effective date until such time as the matter could be decided by the courts – the Board declined to delay. At a status conference with the Court, Judge Jackson inquired whether the Board would delay the effective date of the Rule in order to give the Court sufficient time to consider the arguments in the case and make a ruling. The Board wisely agreed to delay and formally announced the effective date would be moved from November 14, 2011 to January 31, 2012. In the announcement, no mention of the lawsuit was acknowledged. In the December 2 memo there was no mention of the lawsuit either, despite the fact the Board could lose the case, rendering the January 31 effective date, null and void.

It’s understandable that the Board would not want to admit they’ve over-reached by issuing the rule, but their actions are akin to a beat-cop waving pedestrians by an escalating fight yelling, “Move along, nothing to see here.” A federal agency claiming authority it doesn’t have and acting as though there’s nothing wrong with it may be comical in theater, but it’s a potential catastrophe in practice. That’s why the NAM filed the suit against the NLRB to prevent an agency from acting outside the law and also why the NAM sent a letter to the Board today indicating our displeasure with how they’ve proceeded.

Oral arguments are on Monday, December 19 in federal court and a decision is expected before the new effective date of January 31. Since this is the time we all begin thinking about our resolutions for the new year, perhaps the Board can resolve itself to act in a more even-handed manner and follow the law.

This morning, National Labor Relations Board Acting General Counsel, Lafe Solomon, announced the Board is withdrawing its complaint against Boeing Company. Seemingly, this action resolves a matter that generated a great deal of controversy.

The NLRB filed its complaint on April 20^th and the National Association of Manufacturers immediately raised the issue as to whether the Board can or should be trying to dictate where a business can locate and whom they can hire. Effectively what the Board was trying to do was shut down a brand new facility constructed at great expense and would have eliminated over 1,000 high-paying jobs in South Carolina.

While the complaint against Boeing Company has been retracted, the NAM remains concerned about the Board’s actions and what it means to manufacturers and employers across the country. The complaint set a bad precedent – one that could have a ripple effect across our economy.  Indeed, nearly 70 percent of manufacturers indicated in a poll that the Board’s actions, on this and other important matters, will or may negatively impact their decisions to expand or hire. It’s also worth questioning whether situations like this will be used again to influence contract negotiations – something we will be keeping a watchful eye on.

The Chairman of the National Labor Relations Board has released his proposal to pare down the controversial ambush elections rule proffered by the Board in June. Usually when something terrible is pared down it’s not as bad as its original – not so in this case. Here is my read of Chairman Pearce’s proposal – which will be voted on by the Board tomorrow.

The NLRB appears to be moving forward with short-circuiting employers rights because they’re inconvenient. Pre-election hearings will be limited to whether or not there is a question of representation – which is often not in dispute. All other pre-election issues become post-election issues and most post-election issues, the Board freely admits, are mooted by the results of a successful certification of the union.

The Board apparently doesn’t care if the election is fair – if the union succeeds, all is well. Employers will be forced to play a game of “I Win” in which the rules of the game are – the union wins. All of this will be able to happen in as little as three weeks instead of five.

For reference, Winston Churchill defined a fanatic as “one who can’t change his mind and won’t change the subject.”

Late Friday afternoon, the National Labor Relations Board announced it will conduct a public meeting on November 30th to allow the Board to vote on finalizing portions of a proposed regulation commonly referred to as the “ambush elections” rule. While short on details, it appears the Board will not compress the time frame between when a certification petition is filed and the actual election date, but it will proceed with provisions eviscerating employer’s legal rights.  An interesting side note about this is not only the timing of such an announcement- late in the afternoon on a Friday right before a major holiday- but, it is strangely curious the Board chose November 30th for the meeting, which just so happens to coincide with when the House is likely to take up legislation addressing the Board’s proposed rule on representation elections – an unlikely coincidence.

The offending provisions of the rule severely limit the legal options available to employers to challenge certain aspects of union representation elections. The most egregious part of the rule to be voted on would require an employer to declare, within seven days, all issues the employer intends to challenge.  If the employer does not state all challenges within the time frame, the employer will forever forfeit their right to bring it up at any later date. The rationale offered by the Board in stripping these basic rights away from employers will have the opposite effect than intended.

The Board claims it is trying to streamline the election process to reduce frivolous litigation from delaying representation elections. Despite offering no evidence of employers routinely using deleterious legal tactics to stall elections, the Board has deemed it necessary to “streamline” its procedures in order to solve a problem that doesn’t exist. What’s more, the non-existent problem is so serious the Board must circumvent its own protocols in order to address it. But, what’s a little protocol and precedent among friends, right?

Faced with losing the right to legal recourse if an issue isn’t stated at the beginning of the process, employers will be forced to litigate more in order to protect the very rights the Board is trying to limit or take away if they don’t exercise them.

Imagine the NFL requiring the visiting team to submit the plays they intend to run before the game. If the plays were not submitted the team couldn’t run them. Why would a coach submit anything less than the full playbook even with the knowledge that half or more of them would never be used? Wouldn’t it be malpractice to submit less? So too, will it be if these new rules are finalized by the NLRB -but, unlike the consequences in football, the result will be more costly and delay or stifle the creation of jobs – precisely the opposite effect the Board intends.

This week House Education and Workforce Chairman John Kline, along with 35 of his colleagues, filed an amicus brief with the DC Circuit Court in support of the NAM suit against the NLRB regarding the posting requirement. The NAM suit contends the NLRB does not have the authority under the National Labor Relations Act to compel employers subject to the Act to post a notice in their workplace. In addition, the NAM questions the Board’s ability to create a new unfair labor practice without Congressional action.

The amicus brief filed by Chairman Kline and other Members of Congress makes a compelling argument that “the NLRA and its legislative history demonstrate that the Board exceeded its authority, and acted contrary to the NLRA, by creating a notice obligation imposed on employers that are not parties to pending unfair labor practice or representation proceedings.” The brief gives the Court a well constructed history of the National Labor Relations Act and other similar statutes enacted by Congress to illustrate its intent – which clearly demonstrates Congress did not intend for the NLRB to have the authority to require all employers to post notices. The absence of any express authority for the NLRB to issue notice requirements is an important point, particularly given other labor-related acts included such authority.

Henry David Thoreau once said, “In human intercourse the tragedy begins, not when there is misunderstanding about words, but when silence is not understood.” It seems Thoreau’s observation also applies to government agencies that misinterpret silence and use it as justification for interjecting itself into areas in which it has no authority.

Reply briefs are due on November 22^nd and the Court has scheduled oral argument for December 19^th. A decision from the Court is expected prior to the January 31 effective date of the rule.

On August 27^th, the National Labor Relations Board (NLRB) issued a decision in a case known as “Specialty Healthcare.” The specifics of the case relate to whether certain healthcare providers can exclude other similarly situated providers when forming a collective bargaining unit. The NAM has been concerned from the outset that the case would effectively eviscerate what has been known as the “community of interest doctrine.” So, why should employers care?

The reason the community of interest doctrine is important is without it, the NLRB is paving the way for what’s known as micro-unions. Micro-unions are unions with as few as two people forming a unit for collective bargaining. Imagine a restaurant where dishwashers, prep-cooks, fry-cooks, grill-cooks, wait staff, and bartenders all form their own collective bargaining units and are represented by different unions. Specialty Healthcare essentially allows such a hypothetical to materialize. How long would this restaurant be able to function and stay in business?

The public and business community were told the Specialty Healthcare decision wasn’t a big deal so we shouldn’t worry about it. Nothing to see here, they said.

On October 19^th, the NLRB ruled on its first case invoking the new precedent created by the Specialty decision. The case, First Aviation Services, involves a company of 110 employees in which a group of 34 were allowed to form their own bargaining unit despite sharing a community of interest with all but two of the other workers in the same facility. The NLRB promptly denied the employer’s attempt to appeal the ruling of the regional director. The regional director used Specialty Healthcare as its rationale for granting the employee’s request to organize a unit of 34 employees and the full Board denied the employer’s request to review the regional director’s reasoning. While the decision is only two months old, it has already provided the road map for organizers to divide and conquer. The decision is clearly going to have far-reaching implications for decades unless it is over-turned.