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I’m Not Unionized. What Do I Care About the National Labor Relations Board?

In recent months, there have been many news reports about posters that the National Labor Relations Board (“NLRB” or “Board”) wants employers to put up to notify employees about their rights, about President Obama using recess appointments to fill vacancies on the NLRB, and about “quickie election” rules being passed by the NLRB. If your company is non-union, do any of these issues affect you? In one word: YES!

What is the NLRB and Who are its Members? The NLRB is a five person administrative body that handles, among other things, disputes that arise between and amongst employers, employees and unions. This Board has rule-making authority to establish regulations applicable to both union and non-union employers and employees. Historically, the Board has engaged in rule making through adjudicative processes— in other words, a dispute is brought before the Board and the Board issues a decision similar to a judge in a courtroom. However, in recent years, the Board has utilized rulemaking processes that involve proposed rules, public hearings and votes of NLRB members.

These adjudicative and rulemaking processes have been the subject of many of the recent news articles about the NLRB. First, the NLRB must be comprised of Republicans and Democrats (often resulting in a 3-2 split one way or the other). Members are typically appointed for 5 year terms by the President, with the advice and consent of the Senate. However, due to political disputes between the Senate and President Obama, there was a time period where only two seats on the NLRB were filled, raising questions about the validity of decisions made by the NLRB. Indeed, in 2010, United States Supreme Court declared that the NLRB required a quorum of three members to issue rulings. As such, many of the two-person NLRB decisions have been called into question.

To address that issue and the problem of being unable to get a nominee approved by the Senate, President Obama made a recess appointment bringing the NLRB up to three members in April 2010. However, that member’s term expired on January 3, 2012, taking the Board back to only two members. Therefore, on January 5, 2012, President Obama made three recess appointments to the NLRB (two Democrats and one Republican). There are significant questions as to whether these recess appointments were lawful, and on January 13, 2012, a legal challenge to those appointments was filed in the U.S. District Court for the District of Columbia.

What is the Notice Posting About? In August 2011, the NLRB issued a rule that will require almost all private employers to post a notice informing employees of their rights under the National Labor Relations Act (“NLRA”). Originally scheduled to take effect in November 2011, the effective date of the law has now been pushed back until April 30, 2012.

The NLRB posting rule requires employers to post a notice (11” x 17”) of employee rights under the NLRA. The poster states that employees have the right to discuss their working conditions; to act together to improve wages and working conditions; to form, join and assist a union; to bargain collectively with their employer; to strike and to choose not to do any of these activities. The poster also provides examples of unlawful employer and union conduct and instructs employees how to contact the NLRB with complaints.

A copy of the poster can be downloaded for free from the NLRB’s website: https://www.nlrb.gov/poster. As with the recess appointments, the posting requirement is the subject of vigorous legal challenge, which was the basis for the most recent delay in the poster’s effective date.

Are there Really Going to be “Quickie Elections” Now? Probably. As many remember, there was a period of time when several bills were pending in Congress pertaining to issues like card check. These bills were unable to make it through Congress; however, in December 2011, the three person NLRB passed new rules regulating election procedures. As the lone Republican on the NLRB at the time, NLRB Member Brian E. Hayes wrote that the new rules would certainly (1) shorten the time between the filing of a petition to certify a union as workers’ representatives and a secret ballot election; (2) limit the opportunity for full evidentiary hearings or Board review of contested issues; and (3) accomplish by “administrative fiat” what could not be accomplished in Congress: a “quickie-election.”

In short, if you are the target of a unionization campaign after April 30, 2012, your time period to respond to the notification of a petition for an election will likely be reduced from an average of 42 days to somewhere between 10 and 21 days. As such, it is critical for employers to become proactive on these issues because they now will have little time to react and educate their workforce if and when a petition is filed.