As of July 30, the National Labor Relations Board (NLRB) is fully staffed and the new members are likely to pursue issues the NLRB did not complete in past years, many of which are designed to facilitate or expedite the union organizing process.

Among the regulations ABC has been monitoring is the "ambush" elections rule, which would reduce the amount of time between when a union files a representation petition and an election takes place from the current average of 40 days to as few as 10 days.

The rule, which was an expedited portion of a larger plan first proposed in 2011, was stayed by the U.S. Court of Appeals for the District of Columbia Circuit Feb. 19 at the request of the ABC-led Coalition for a Democratic Workplace (CDW) until a decision is issued by the U.S. Supreme Court on the validity of three NLRB members' recess appointments. If those appointments are declared invalid, then the board did not have a quorum when it issued the rule and it would be invalidated as well. Regardless of the outcome of the legal challenge, the NLRB, now with a full quorum, could re-propose the rule or simply hold another vote on the current rule - or the original proposal, which sped up the election process even more and contained several other alarming provisions. Either way, it is likely that the new board will forge ahead with efforts to enact a rule to speed up union organizing elections.

The Supreme Court case currently holding up the ambush elections rule is related to the Noel Canning case, in which three lower courts found the president violated the Constitution when he bypassed the Senate to fill NLRB vacancies. If the Supreme Court upholds the lower court decisions, it will invalidate more than 1,000 NLRB actions taken during the terms of the appointees. This includes actions on class action waivers, confidentiality policies, union access rights and bargaining issues, among others.

It also includes an Aug. 30, 2011, ruling by the NLRB in Specialty Healthcare in which the board decided that a union could seek to organize a group of nursing assistants, despite requests by the employer to include other employees in the unit. The decision effectively created a new standard for a bargaining unit-a "micro-unit"-despite the fact that the current 20-year-old standard had been without controversy and that it places a heavy burden of proof on the employer to show that the excluded employees should be included. The Sixth Circuit Court of Appeals affirmed the NLRB decision Aug. 15.

Because so many of these issues are still in appeals courts with no way to predict their outcomes, employers are left with hard choices when making basic labor-related decisions. In addition, the NLRB is not likely to wait for court approvals before expanding their reach.

One rule that is not impacted by the Noel Canning case is the NLRB "Notification of Employee Rights" rule, which would have required employers to display a poster in their workplaces that contained a biased and incomplete list of employee rights under the National Labor Relations Act (NLRA). That rule was struck down in two lower courts. The NLRB petitioned both courts for a re-hearing and has already been denied by one of them. If the other court denies a re-hearing, the NRLB will have to petition the Supreme Court if it wants the rule implemented.*

In addition to the legal issues surrounding the president's recess appointments to the NLRB, a federal judge Aug. 20 declared the appointment of NLRB Acting General Counsel Lafe Solomon invalid. The ruling pointed to the Federal Vacancies Reform Act, which requires "acting" officials to serve in their roles only for a specified amount of time and only if he or she had previously served as the personal assistant to the departing officer within the past year. Solomon never served as a first assistant, leading the judge to declare his appointment invalid.

Finally, not all rules of concern to the merit shop construction industry are coming from the NLRB. The Department of Labor (DOL) has a new Secretary of Labor, Thomas Perez, who is expected to release a flood of regulations that have been held up over the past year, including the persuader rule and the Office of Federal Contract Compliance Programs' affirmative action rules for contractors covering veterans and persons with disability.

ABC and CDW have been instrumental in many of the court proceedings and efforts to block rules that could negatively impact the merit shop construction industry and will continue to monitor NLRB and DOL actions going forward. 

*COMPLIANCE NOTE: This ruling does not change the compliance requirements for federal contractors under Executive Order 13496 (or its subsequent 2010 implementing regulations) to post a similar notice from the DOL.

Summer 2013 Regulatory Alert

ABC's Regulatory Alert provides an overview of the federally mandated rules, regulations and enforcement actions from the U.S. Department of Labor (DOL), Occupational Safety and Health Administration (OSHA) and other federal agencies. Click here for brief summaries of current issues, as well as links to more detailed information and guidance.