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Government Action Center

National Labor Relations Board (NLRB) Watch

NLRB Ambush Election Rule - UPDATE

"Ambush Election" Rule Set Aside as Lacking Board Quorum - What Does This Mean for Union Representation Elections?
Late last year, the National Labor Relations Board (NLRB) attempted to adopt a new, final rule governing union representation elections. The rule, designed to dramatically speed up union representative elections by, among other things, combining pre- and post-election appeals, truncating pre- and post-election hearing procedures, and limiting the types of issues that employers could raise at pre-election hearings, was highly controversial and vigorously opposed during the rulemaking process by employers, who derisively deemed the rule the "Ambush Election" Rule. Despite fervent opposition, the Rule went into effect on April 30, 2012 . . . or so we all thought. Read full story at www.troutmansanders.com

NLRB Still Pressing for Controversial Posting Rule, Implementation Delayed until April 30, 2012

The current version of the NLRB's controversial rule requires virtually all private employers, unionized and non-unionized, to post a notice of employee rights under the National Labor Relations Act. Under the NLRB rule the required posted notice must advise employees of their rights to engage in union organizing, bargain collectively and engage in other protected concerted activities. Failure on an employer's part to comply could result in an unfair labor practice charge against an employer by the NLRB.

The only employers excluded from the Posting Rule will be railroads, airlines, agricultural employers and very small employers who conduct virtually no interstate commerce business.

The NLRB originally slated its posting rule to be effective on November 14, 2011. However, faced with multiple court challenges by various business groups - including the U.S. Chamber of Commerce - as well as efforts by Congressional Republicans to overturn it, the NLRB first postponed the rule's effective date to January 31, 2012. Due to continuing pressure from these entities and business groups, such as AICC, the implementation date has been further postponed until April 30, 2012.

In Washington, D.C., the National Association of Manufacturers, National Right to Work Legal Defense and Education Foundation, and National Federation of Independent Business sued the NLRB in the U.S. District Court for the District of Columbia to block the posting rule, asserting the rule exceeded the NLRB's authority and violated their First Amendment rights. Those separate suits were consolidated into one lawsuit, and the court held a hearing concerning multiple summary judgment motions on December 19. The judge has taken those motions under advisement, and a decision is expected soon.

In South Carolina, the U.S. Chamber of Commerce partnered with the South Carolina Chamber of Commerce to sue the NLRB in the U.S. District Court for the District of South Carolina. The chambers assert the posting rule violates multiple federal laws, including the NLRA, and the First Amendment by forcing employers to use their own resources to post a pro-union message on employers' own properties, in effect creating a new unfair labor practice that exposes employers to significant and costly liability for failure to comply. That court will hear arguments in this case on January 11, 2012 concerning multiple pending summary judgment motions, and a decision is expected shortly thereafter.

Finally, on November 30, 2011, the U.S. House of Representatives passed the Workforce Democracy and Fairness Act (house bill H.R.3094) which, among other actions, would roll back the NLRB's posting rule. That bill remains up for consideration by the Senate, which has yet to act on the measure.

Action:

Continue to monitor the progress of the NLRB Posting Rule. Now is the time to contact your U. S. Senators and urge them to support the Workforce Democracy and Fairness Act. It is critical that manufacturers make it clear to the Senate that the NLRB's actions are damaging your ability to create and retain jobs.

Click here to download a "Workforce Democracy and Fairness Act" draft letter.

Boeing Case

Earlier this year, the NLRB's General Counsel filed a complaint against Boeing for opening a new production facility in South Carolina. Late last week, the International Association of Machinists (IAM) and Boeing announced an agreement to settle their dispute, which was the basis of the NLRB complaint filed against Boeing earlier this year. As part of the agreement, the IAM will drop its complaint against Boeing, but the NAM remains concerned about the precedent set by the acting General Counsel and its implications for manufacturers seeking to expand operations.

Workplace Democracy and Fairness Act-H.R. 3094

On November 30 the House took an important step toward halting the NLRB's march against job creators by passing the "Workforce Democracy and Fairness Act" by a vote of 235-188. The bill would protect employers and employees from two of the NLRB's extreme actions-the proposed "ambush election" rule and the NLRB's Specialty Healthcare decision. H.R. 3094 allows employers sufficient time to prepare for an upcoming union election and ensures that workers have access to all the facts they need to make a fully informed and private decision about union representation-a decision that impacts their job and family. The bill would also undo the Board's decision in Specialty Healthcare, which allows for the formation of "micro unions," consisting of as little as two employees within one facility. These recent Board actions would place employers at a significant disadvantage. H.R. 3094 now awaits action in the U.S. Senate.

Action:

Now is the time to contact your U. S. Senators and urge them to support the Workforce Democracy and Fairness Act. It is critical that manufacturers make it clear to the Senate that the NLRB's actions are damaging your ability to create and retain jobs.

Click here to download a "Workforce Democracy and Fairness Act" draft letter.

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