5 Labor Relations Battlefronts

By Grossman, Robert J. | HRMagazine, August 2012 | Go to article overview

5 Labor Relations Battlefronts


Grossman, Robert J., HRMagazine


From elections to poster mandates, the NLRB throws its weight around.

Last year's standoffbetween the National Labor Relations Board (NLRB) and Boeing didn't satisfy the agency's push for controversial stances. And permitting unions to organize micro-bargaining units-allowing unions to decide whether the bargaining unit will consist of all workers or a much-smaller group of workers who share a "community of interest"- hasn't been the only controversial proposal floated by the agency.

The micro-bargaining unit decision came from the case Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83 (2011), where the board ruled that nursing assistants may form a bargaining unit-a so-called "micro-bargaining unit"-without including other employees at the facility in the unit.

Here are five more changes that affect union and nonunion workplaces-four spearheaded by the NLRB and another by the U.S. Department of Labor-that experts say are among the most troubling from employers' perspective.

Courts have put the brakes on two of the most controversial proposed changes-speeded-up union elections and a mandate to display a "labor rights" poster. But three others are advancing.

Speeded-Up Elections

So-called "quickie" election regulations, which came into effect at the end of April, postponed employers' challenges to members of a proposed bargaining unit. The regulations cut the average time period from petition until election to an estimated 20 days, about half of the 38-day median for 2010 and 2011. Thirty-eight days is not a long period but, employers claim, provides enough time to make their cases. In 2011, 91.7 percent of all initial representation elections were held within 56 days of filing petitions.

But after the NLRB had begun processing 150 petitions under the new regulations, the U.S. District Court for the District of Columbia on May 15 invalidated the regulations. In a challenge brought by the U.S. Chamber of Commerce and the Coalition for a Democratic Workplace, the court ruled that, in adopting them on Dec. 16, 2011, the board acted without a legal quorum. Three members needed to participate in the vote, but only two did. The fact that only two positive votes were required and two were cast was not sufficient. The third member, whose opposition was presumed, had to participate as well-if only to abstain or vote nay, Judge James E. Boasberg explained.

The judge's decision was based solely on procedural grounds. He noted that his ruling "need not spell the end of the final rule for all time. ... Nothing appears to prevent a properly constituted quorum of the board from voting to adopt the rule."

On May 15, in compliance with the decision, the NLRB announced that it "has temporarily suspended the implementation of the rule changes." Among its options are to appeal the decision or to vote again with a proper quorum. Whatever action the board decides on, it seems likely that quickie election regulations will be back on the agenda and employers will raise challenges.

"Put together the quickie election and the micro-unit ruling and you have a 'double whammy' that would tilt the playing field in favor of labor," says Alan D. Berkowitz, a partner in the Labor and Employment Practice of Dechert LLP in Philadelphia.

Kate Bronfenbrenner, director of labor education research at Cornell University's School of Industrial and Labor Relations, says that 47 percent of serious unfair labor practice charges against employers-discharges, harassment, changes in benefits-happen in the weeks before the petition is even filed. Eighty percent happen from before the petition is filed to within two weeks after. The shorter the time period between the filing of a petition and the election date, "the less time the employer has to continue to oppose and delay," she remarks.

Employers question Bronfenbrenner's conclusions. "Charges of unfair labor practices are allegations and, unfortunately, people make all kinds of claims that may not be true," says Mark Theodore, a partner with Proskauer Rose LLP in Los Angeles. …

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