Labor Relations: Republican Congress to Step Up Pressure on Pro-Labor NLRB

Employment Law

Last year ended with a flurry of controversial pro-labor actions by the National Labor Relations Board, with all signs indicating that the Obama Board will continue the trend in the coming year, but an emboldened Republican Congress will intensify its scrutiny.  Senate HELP Committee Chairman Lamar Alexander has been a strong critic of the agency, contending it has become an advocate for labor rather than "an impartial umpire."  Similarly, House Education and the Workforce Chairman John Kline (R-MN) and Health, Employment, Labor and Pensions Subcommittee Chairman Phil Roe (R-TN) have held numerous oversight hearings on the agency throughout the Obama administration, while moving several bills to overturn its decisions.  Though any legislation would likely face a Senate filibuster or presidential veto, the Republican takeover of the Senate virtually ensures alignment between the two houses on NLRB issues.

Expedited Elections  In December, the NLRB issued its final rules revamping the union representation process to shorten election periods to as few as ten days after the filing of a petition.  In addition, the rule requires employers to provide to a union prior to the election the personal email addresses and phone numbers of the employees who will be voting.  The new rules take effect April 14, but it remains to be seen how quickly the Board's 32 regional offices are able to implement the new rules, especially if there is a flood of union petitions seeking to take advantage of them.  The impact of the new rules on employers and their employees will be exacerbated by the Board's Speciality Healthcare rule allowing unions to balkanize an employer's workforce by organizing very narrow units.  Cases following that decision will continue to be challenged in the federal courts this year.  Meanwhile, several business groups, including the Coalition for a Democratic Workplace (of which HR Policy is a member) filed suit this week in the D.C. Circuit seeking to block the new rules.  Also, congressional Republicans may consider trying to overturn the rules under the Congressional Review Act (CRA), an action which cannot be filibustered in the Senate but would still take a two-thirds vote to override an expected veto.

Joint Employer (McDonald's Complaints)  In one of his final actions of 2014, NLRB General Counsel Richard Griffin issued several complaints against McDonald's USA based on alleged violations by certain owner/operator franchisees on the theory that the company is a joint employer of those franchisees' employees.  Griffin has pressed the five-Member Board to adopt a more expansive definition of "joint employer" in a variety of situations—temporary agency employees, subcontractors' employees, etc.  The Board is expected to issue a decision later this year in the Browning-Ferris case likely adopting such a definition, which HR Policy and other business groups weighed in against.  Legislation is expected to be introduced in the new Congress to restore the traditional definition.

NLRB Seats and Reform  The NLRB actions involving McDonald's and expedited elections, among others, have drawn attention to the instability in the law in recent years created by dramatic changes in its interpretation as the White House changes hands from one party to the other.  To address this problem, Senate HELP Chairman Alexander is expected to reintroduce his NLRB Reform Act, which would expand the Board from five Members to six, evenly divided between the two parties.  Meanwhile, two of the five seats—one from each party—will become vacant during the Obama administration's final two years.  It remains to be seen whether the President and Senate Republicans will be able to keep the Board at five members, something that has only occurred about 40 percent of the time since 1980.

Volkswagen-UAW Relationship  The labor movement continues to hope for membership gains in the Deep South prompted by potential recognition of the United Autoworkers by Volkswagen Chattanooga.  Under a policy adopted this fall by the company, the union is eligible for the highest level of "engagement" short of collective bargaining by virtue of having the support of at least 45 percent of the workforce.  However, that support is based on signed union authorization cards which anti-UAW workers have disputed.  The UAW, on the other hand, continues to claim that it has the majority support (51 percent) that would allow full recognition by the company for collective bargaining.  The exact status of the UAW at the facility will likely continue to evolve through the coming year.

Local Right-to-Work Laws  At year's end, in an unprecedented move, Kentucky's Warren County became the first local government to establish a right-to-work law within its jurisdiction, even though the state itself does not have a right-to-work law.  Under the National Labor Relations Act, a state may prohibit an agreement between a union and an employer requiring employees to pay agency fees to the union.  Currently, 24 states have such "right-to-work" laws (with the Governor of New Mexico seeking to make it the 25th) but whether a locality within a state may adopt such a law on its own has never been tested.  A challenge in federal court to the new law is likely, but, in the meantime, other localities throughout the country will be pressed to follow suit.