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ABC REGULATORY ALERT – WINTER 2012
NLRB SPECIAL EDITION
ABC’s Regulatory Alert provides an overview of federally mandated rules, regulations and enforcement actions. Below are brief summaries of the most pressing actions by the National Labor Relations Board (NLRB), with links to more detailed information and guidance. If you have questions, contact ABC’s Senior Manager of Labor and Employment Policy Sean Thurman, thurman@abc.org, or ABC’s Director of Policy Karen Livingston, livingston@abc.org.
Additional information and resources are available via ABC’s Regulatory Affairs webpage and ABC’s Newsline.
IN THIS ALERT:
NLRB Finalizes Overhaul of Union Representation Procedures, Establishment of "Ambush Lite" Elections
On Dec. 22, 2011, the NLRB issued a final rule, which is scheduled to go into effect April 30, 2012, that implements provisions of a controversial proposal to change union representation elections. ABC publicly criticized the move, and the ABC-led Coalition for a Democratic Workplace (CDW) filed a legal challenge to block the rule.
The final rule includes certain provisions of a June 2011 proposed rule (commonly referred to as the “ambush” elections proposal), which ABC strongly opposed because it would significantly limit an employer’s ability to educate employees about the pros and cons of union representation. Under the June proposal, the amount of time between when a petition is filed and a union election takes place would have been reduced from the average of 38 days to as few as 10 days. The Board also would have required pre-election hearings within seven days and provided employers with only two days to produce contact information for employees.
Under the modified final rule issued in December 2011, the Board disposed of the rigid seven- and two-day requirements, but limited the issues an employer can raise at a hearing and the employer's opportunity for appeals. The impact will still shorten election time frames, with experts estimating elections will be held within 14 to 24 days.
The NLRB hastily expedited publication of the “ambush lite” election rule in an attempt to finalize it before Board Member Craig Becker’s term officially expired on Jan. 3, 2012. Board Member Brian Hayes was the sole dissenting voice when the proposal was being considered, and a strongly worded dissent is expected before the rule goes into effect.
For more on the rule, visit ABC’s Newsline.
RESOURCES:
- Final Rule on Representation-Case Procedures
- NLRB Release
- Summary of Amendments Included in Final Rule
NLRB Announces Delay of Biased Notice Posting Rule
In August 2011, the NLRB issued a final rule requiring employers to display an 11-by-17-inch poster in their workplace that contains a select list of employee rights under the National Labor Relations Act (NLRA). On Dec. 30, 2011, the NLRB delayed the notice posting requirement’s effective date from Jan. 31, 2012 to April 30, 2012. On or after that date, employers will be required to post a physical copy of the notice at workplaces and an electronic copy on the internet (or company intranet), if the company already does so with other similar federal notices.
The rule has been subject to several legal challenges filed by the ABC-led CDW and other employer representatives. The lawsuits assert the NLRB lacks authority under the NLRA to issue the rule.
Under the rule’s provisions, employers have the option of posting their own notice (in addition to the Board’s notice), as long as it does not contain “threat[s] of reprisal or force or promise[s] of benefit.” ABC produced an 11-by-17-inch sample supplemental notice designed exclusively for nonunion contractors that outlines additional rights granted under the NLRA.
As the rule is currently written, failure to post the NLRB poster on or after April 30, 2012, would be considered an enforceable unfair labor practice in violation of the NLRA. In addition, the Board would be able to extend the six-month statute of limitations for filing a charge when a case involves other unfair labor practices. If an employer knowingly and willfully refuses to comply with the requirements, the refusal could be used as evidence of unlawful motive in other unfair labor practice cases.
For more on the posting requirement and the Board’s delay, visit ABC’s Newsline.
RESOURCES:
President Obama Disregards Constitutionally Established Separation of Powers with NLRB “Recess” Appointments
On Jan. 4, 2012, President Barack Obama brazenly ignored constitutionally established separation of powers, as well as the rules of the U.S. Senate, by appointing three new members to the NLRB. The appointments are evidence the Board will continue to operate uninterrupted in its pursuit of silencing the voices of employers in the workplace.
ABC condemned the president’s decision to appoint Sharon Block (D), Richard Griffin (D) and Terry Flynn (R) to vacant seats on the Board, stating the agency “has been transformed from a neutral arbiter of labor law disputes into an activist organization that promotes the special interests of politically powerful unions.” Beyond concerns about the NLRB, the president’s actions show a blatant disregard for the Constitution and decades of legal opinion. In addition to ABC, several elected officials, experienced legal experts, media outlets and other organizations have criticized the president’s actions.
If left unchallenged, the appointments set a chilling precedent for presidential power that vastly exceeds what our nation’s founders envisioned by essentially giving the White House unlimited ability to appoint any person to any federal post without any meaningful review by the publicly elected officials in the Senate. In practical terms, this means no congressional checks on appointments of controversial individuals to key posts; diminished public accountability for unelected bureaucracies; and more job-killing, anti-business policies and regulations to contend with.
On Jan. 13, 2012, the ABC-led CDW filed a legal challenge against the president’s actions aimed at restoring the system of checks and balances prescribed in the Constitution. In addition, efforts are underway in Congress to investigate the White House’s actions leading up to these appointments and to limit the president’s ability to issue recess appointments in the future.
For more on the president’s “recess” appointments, visit ABC’s Newsline.
This email is intended for informational purposes only and does not constitute legal advice or opinion.
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