Court Challenge and Board Seats The D.C. Circuit is expected to rule as early as this month on whether Congress was actually in recess when President Obama appointed Democrat NLRB Members Sharon Block and Richard Griffin. If their appointments are nullified, this will leave only one seat filled—that of Chairman Mark Pearce—on the five-member Board, and his term ends in August. The Board members will then have to decide whether to defer to the D.C. Circuit and stop issuing decisions or continue until the matter has been decided by the U.S. Supreme Court, which could take at least another year. Challenges are pending in other circuits, but at least one—the Seventh Circuit—avoided the issue by deciding that the parties lacked standing. Meanwhile, if the appointments are nullified, the only option available to keep the Board functioning would be for Senate Republicans to agree to a package of nominations.
Troubling Trends at the Board If the first four years are any indication, the Board can be expected to push the envelope further in each area of its jurisdiction:
- Union representation elections – The Board has already issued one set of rules—currently tied up in the courts—aimed at shortening elections to potentially as few as 10 days, and Chairman Pearce has promised to follow these up with even more changes. Among other things, the changes would truncate employers’ procedural rights, force employees to vote without knowing who else would be represented by the union, and require the employer to provide emails and phone numbers of voting employees to the union. The Board will also continue to implement its new “micro-unit” rule in the Specialty Healthcare case, which enables unions to carve up the workplace into smaller units that are easier to organize.
- Collective bargaining – Though most of the public attention has focused on the rules governing union organizing, the Board will likely continue to issue rules upsetting the balance at the bargaining table where a union is in place. In the closing months of 2012, the Board imposed new obligations on employers when an agreement expires—requiring continuation of union dues checkoffs and giving employees any future annual increases that would have occurred under the expired agreement. The effect of both of these rulings is to tip the scales toward the union at the bargaining table.
- Expansion of “Protected Concerted Activity” – With a declining caseload in the traditional areas of union organizing and collective bargaining, the Board and its General Counsel have taken a number of actions that have the effect of broadening its jurisdiction. In a number of decisions having little or nothing to do with employees trying to form a union, the Board has declared unlawful employer actions or policies that have a potential for “chilling” the ability of employees to communicate with each other or act together to improve workplace conditions. This expansive view of “protected concerted activity” is impacting employer policies regarding social media usage and workplace misconduct investigations, among others.
The only solace for these various trends is that virtually all are being reviewed by the federal courts, which currently are the only restraining force available. HR Policy will continue to join with other business groups in filing amicus curiae briefs in important cases that would restore the balance in the law.
Persuader Rules to Be Issued This Spring In its fall 2012 regulatory agenda, the U.S. Department of Labor indicated that, in April, it will issue final regulations that would require companies to report on any use of labor consultants in persuading employees regarding their labor rights, including attorneys who provide more than purely legal advice. The rules should be watched closely by chief human resource officers, because the top executives of companies that fail to file such reports could be subject to criminal penalties of up to $10,000 and one year in jail. Under long-standing interpretations of the Labor-Management Reporting and Disclosure Act, employers only have to report the use of outside consultants if those consultants make direct contact with their employees. The so-called “persuader rules" are expected to expand this reporting requirement to include consultants and attorneys even when there is no direct contact between the consultant and employees, unless they are giving purely legal advice to the employer. Under the proposed rules, reporting would likely be triggered if a consultant was involved in developing or administering employee attitude surveys concerning union awareness, developing employer personnel policies or practices, and training supervisors to conduct individual or group meetings.
Labor Trying New "Worker Center" Strategy Even with the Obama administration’s labor-friendly policies, organized labor is starting to wake up to the reality that traditional forms of union organizing will continue to decline. Thus, labor is considering new strategies that abandon traditional collective bargaining in favor of “representing” employees in certain industries through so-called “worker centers.” A number of these have emerged in recent years involving restaurants, warehouses and retail operations among others. For example, the Organization United for Respect at Walmart (OUR Walmart), backed by the United Food & Commercial Workers union, claims to represent thousands of Walmart employees, seeking improvement in their working conditions. Its tactics include requested meetings with the Board of Directors, marches, rallies and an unsuccessful attempt to generate a nationwide strike on Black Friday. Despite limited success thus far, the worker center movement has drawn optimistic praise from labor’s supporters, such as pundit Harold Meyerson, who observes: “How such actions go to scale, how they move from the theatrical to the impactful, is anybody’s guess. But there’s a growing sense among labor organizers and leaders that, with conventional private-sector organizing now all but impossible, putting resources into efforts that lay the groundwork for some kind of surge among America’s millions of underpaid workers may be the best use of unions’ dollars right now.”
