Overturning the NLRB’s Actions Proving to Be Difficult

by Michael Haberman on March 9, 2012 · 2 comments


Two activities of the National Labor Relations Board, both unfriendly to business, especially small business, are proving to be difficult to overturn.

Last fall the National Labor Relations Board (“NLRB”) announced that it has again postponed implementation of its published rule requiring private sector employers subject to the National Labor Relations Act (“NLRA”) to post an official notice informing employees of their rights under the NLRA, and penalizing employers for non-compliance. Originally the notice was to be posted in November, then it was delayed until December, then January, 2012 and then April 30, 2012. The purpose of the delay was to allow a federal judge to rule on the legality of this requirement that businesses must post the notice. Unfortunately the decision of the judge was not friendly to business.

On March 2, 2012 the United States District Court for the District of Columbia held that the National Labor Relations Board has the authority to require employers covered by the National Labor Relations Act to post a workplace notice regarding employee rights under the Act. This notice explains that employees have the right to organize. However, while affirming the authority of the NLRB to require this posting the court did strike down two provisions. The first provision would have made it an unfair labor practice for an employer to fail to post the notice. The second provision to be eliminated dealt with the penalty that would have been imposed if an employer failed to post the notice. In both cases the court said that the NLRB will have to consider each of those on a case-by-case basis. If you want to read more you can take a look at this Seyfarth Shaw One Minute Memo. But it looks like this poster will have to be posted on April 30th .

The second action that will be difficult to implement that would have affected the NLRB was a bid by Congress to overturn the Board’s action on “quickie” elections. This was a rule shortening the time for union representation elections, approved by the NLRB in December 2011. On Feb. 16, 2012, a joint resolution to rescind the controversial rule change was introduced in both chambers. The resolution of disapproval was introduced under the Congressional Review Act (CRA), which allows Congress to block federal agencies from implementing regulations or rule revisions. However, this resolution does not have bipartisan support. Given that the Senate is controlled by Democrats it is unlikely that it would get passed by the Senate and it certainly would not get signed by President Obama.

The “quickie” election ruling shortens by about 30 days the time an election is to be held in a representation election. SHRM said According to a written statement from the NLRB, the rule change is intended primarily to streamline procedures for a minority of union representation cases in which the parties can’t agree on certain issues—such as the eligibility of employees to participate in the election. The final rule approved by the board is a scaled back version of more substantial changes first proposed by the NLRB in June 2011. The final revision did not include two highly controversial provisions that would have required businesses to provide employee e-mail addresses and phone numbers to union organizers and would have reduced the time frame for employers to provide union organizers with a full roster of employees’ names and mailing addresses.” This shortened time frame would give unions an advantage in the organization process.

SHRM also reports “Supporters of the rule revision say it was needed to level the playing field for organized labor, which they say faces an uphill struggle against employers that are fighting to keep their workplaces union-free. The supporters point to the dwindling numbers of unionized workers in the United States as evidence that the rule revision is necessary.”

Let me run one sentence by you again. “The supporters point to the dwindling numbers of unionized workers in the United States as evidence that the rule revision is necessary.”

I would like to point out to these supporters that the dwindling number of unionized workers in the United States IS EVIDENCE OF THE RAPIDLY GROWING IRRELVANCE OF UNIONS TO THE MODERN WORKER IN THE UNITED STATES. It is not that companies have an unfair advantage it is the fact the nature of work has changed and unions have not been able to adapt to these changes.

I am certain that the dinosaurs thought that mammals had an unfair advantage too and that they should have been given a better chance to survive. Well that is not the way the evolutionary process works. And unions are dinosaurs. Without the ability to adapt to the modern workplace unions will die out for the most part, with the occasional lizard or other reptile surviving. But grasping at straws from the government to stave off extinction will not work.

Source: Bid to Overturn NLRB ‘Quickie’ Union Election Rule Faces Hurdles

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{ 2 comments… read them below or add one }

Louie Delgado March 7, 2013 at 3:15 pm

As a union representive I process grievances. What rights or options do I have if management or Human Resources refuses to meet with me to discuss a grievance? Does the constitue a default and the employee wins the grievance?

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Michael Haberman March 7, 2013 at 7:12 pm

I think that would depend on contract language and the grievance process laid out in that contract. If a supervisor will not meet with you to discuss a grievance it usually gets escalated up the chain. If they refuse to abide by language in the contract that could be considered a ULP.

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