The NLRB Has Been a Busy Bee in February

Even though this winter’s snow has paralyzed much of the economy, the NLRB has been busy in the nation’s capital planning their next moves to expand union membership. Most recently, the NLRB has invited amicus briefs in a representation case concerning “whether a religiously-affiliated university is subject to the Board’s jurisdiction, and whether certain university faculty members seeking to be represented by a union are employees covered by the National Labor Relations Act or excluded managerial employees.”  According to the NLRB’s website, “the Service Employees International Union, Local 925 filed a petition to represent a unit of all non-tenure-eligible contingent faculty who taught a certain number of hours” at a Lutheran college.  The Board has also again proposed amending the rules governing union elections.  The proposed rules are virtually identical to the rules it proposed in 2011, but were struck down by the federal courts due to the Board lacking a required quorum.   The proposed rules are described as eliminating unnecessary litigation and delay, but have been objected to on the grounds that it limits an employer’s opportunity to object to the scope of the proposed bargaining unit.  Various  groups have been referring to this rule as authorizing  expedited, ambush or quickie elections.

For example, a labor union will typically seek in its representative petition to define a bargaining unit that closely approximates the employees it has already recruited (and are likely to vote “yes” in an election) and will seek to exclude employees who have rejected its recruitment (and are likely to vote “no” in an election) even if those excluded employees share a community of interest with the employees in the proposed bargaining unit and should be included under existing NLRB rules.  This is referred to as “cherry picking.”   Employers generally want to include the excluded employees in order to increase the chance that the union will lose the election vote.  The rules being proposed by the NLRB only give employers the right to object to the scope of the proposed bargaining unit within 7-14 days of when the petition was filed and only if the challenged scope affects at least 20% of the proposed bargaining unit.  Otherwise, the employer cannot object until after the election has been held (and, even then, it seems discretionary whether the appeal will be considered at a higher level).  Elections which used to occur about six weeks after the filing of a representation petition may occur within 20 days under the proposed rule.  Obviously, this leaves an employer with far less time to communicate information (or propaganda) concerning a union election with the employees, even though the union has likely spent months organizing the employees and imparting only its propaganda.   In other words, the proposed rules will deny the employees the opportunity to make an informed decision after hearing from both sides in the election.

The proposed rules also expands the information which employers must provide to a union about its workforce from names and home addresses to also include telephone numbers, email addresses, shifts, work locations, etc.   In other words, the employer is required to share more personal information about its employees with the union.

The NLRB is also inviting amicus briefs in an unfair labor practice case concerning the standard the Board should apply in deferring to arbitration decisions.  The NLRB’s General Counsel seeks to change the existing standard.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.