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.

This afternoon the NLRB held a public meeting to discuss and vote on Chairman Pearce’s proposal to move forward with amending the Board rules and regulations regarding the procedures for representation elections.  This meeting, timed coincidently on the same day as the vote in the House on the Workplace and Democracy Act, is one more step towards a final rule altering current procedures on representation elections. 

While Chairman Pearce’s introductory remarks appear to show this meeting demonstrates a fair and open process, what should not be overlooked is this proposal, while harmless at first glance, will alter what can and cannot be heard at a pre-election hearing, what can be appealed after a pre-election hearing and shorten the time frame for elections.

What the meeting revealed is it is likely the Board will cast aside its own tradition—securing three affirmative votes when making such major changes and allowing a dissent to be published along with the rule being finalized. Both Chairman Pearce and Member Becker do not seem too concerned, however, and emphasized the traditions and practices of the Board were not statutory and the filing of a dissent only applied to adjudications and not rule making.  It seems the Board can interpret their policies in the light most favorable to fit its current agenda.

One has to wonder then whether this meeting was nothing more than a disingenuous attempt to show the public the NLRB is making a good faith effort to be open and fair when considering a final rule.  So while there was a vote of 2 to 1 to proceed with Chairman Pearce’s proposal – we don’t know yet, what appearance the final rule will take. There is a wolf in sheep’s clothing, but the zipper is showing.

The House took an important step toward putting a halt to the NLRB’s recent pattern of action against job creators.  H.R. 3094, the Workforce Democracy and Fairness Act passed by a vote of 235-188.  Also today, the NLRB met and voted to move forward toward finalizing the ambush elections rule. H.R. 3094 is critical to halting that ill-advised rule in its tracks.

This legislation, sponsored by House Education and Workforce Committee Chair John Kline (R-MN), reaffirms protections workers and job-creators have received for decades. Key provisions would:

•  Provide employers at least 14 days to prepare their case to present before a NLRB election officer and an opportunity to raise additional concerns throughout the election hearing. This will ensure employers can participate in a fair union election process.
  
• Guarantee that workers have the ability to make a fully informed decision in a union election by requiring no election will be held in less than 35 days. This will give workers a chance to hear both sides of the debate before ballots are cast.
  
• Reestablish decades of law developed through years of careful consideration and Congressional guidance by reinstating the standard for determining which employees will vote in the union election, preventing the possibility of several “micro-unions” at one facility.
• Protects workers’ privacy by empowering workers to choose the type of personal contact information that is provided to the union.

While important, this is just one step in the process and it is critical to job creators and their employees that the Senate take up this bill and put an end to the NLRB’s push for unfair and overreaching labor policy when it comes to ambush elections and micro-unions.

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.

In poor taste.  That’s about the nicest way that one could describe comments made by acting National Labor Relations Board General Counsel Lafe Solomon on the NLRB’s lawsuit against Boeing. In an email commenting on a Planet Labor article that suggested that Boeing might not open its new plant in South Carolina, Solomon wrote:

“The article gave me a new idea. You go to Geneva and I get a job with airbus. We screwed up the U.S. economy and now we can tackle Europe.”

Manufacturers are already facing a host of troubling, anti-jobs and anti-growth actions from the NLRB, including the lawsuit against Boeing, Specialty Health Care, ambush elections, and posting regulations.  Comments like these add nothing to the public debate and, in fact, reflect the reality of the negative economic effects that recent NLRB decisions have had across America.

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.