Labor Relations Update

The NLRB's agenda for bringing about massive change despite severe opposition continues to be stalled by legal challenges.  Last month, the Board's employee rights poster notice rule was invalidated.  Now, a month later, a federal judge in the District of Columbia has ruled that the ambush election rules, which were adopted in December, and went into effect April 30, are invalid.  The ambush election rules were challenged by the United States Chamber of Commerce and the Coalition for a Democratic Workplace.  The decision can be found here: Chamber of Commerce, et al. v. NLRB (Decision).pdf  

The judge held the rules invalid due to the fact a quorum of three members was not present when they were adopted on December 16, 2011.  This is because Member Hayes did not participate in the actual final vote.  Member Hayes believed he did not have to take any further action on the rules because he already had expressed his opposition to them.    As Judge James Boasberg stated in his ruling:

According to Woody Allen, eighty percent of life is just showing up.  When it comes to a quorum requirement, though, showing up is even more important than that.  Indeed, it is the only thing that matters--even when the quorum is constituted electronically.  In this case, because no quorum ever existed for the pivotal vote in question, the Court must hold the challenged rule is invalid.

The Court determined that Member Hayes' inaction on the day of the vote could not count toward a quorum, particularly because the Board did not request he take action as is typical when a vote takes place.  

The judge stressed the narrowness of his decision, and seemed to issue a challenge to the new Board to vote on the rules:

The Court does not reach--and expresses no opinion on--Plaintiffs' other procedural and substantive challenges to the rule, but it may well be that, had a quorum participated in its promulgation, the final rule would have been found perfectly lawful.  As a result, nothing appears to prevent a properly constituted quorum of the Board from voting to adopt the rule if it has the desire to do so.  In the meantime, though, representation elections will have to continue under the old procedures.

Thus, the ambush election rules are invalidated, for now.  

The ruling is not the end of the matter, of course.  The judge expressly stated that he was not reaching the merits of the rules themselves.   So here are some considerations to look for in the future:

• Will the current Board vote to adopt the rules?  The new Board members have been strangely quiet compared to their predecessors, and one doesn't know whether the new group wants to continue down this path.
• There is an issue with the new members as well.  There are some who believe the Members who were appointed in January 2012 were not appointed during a valid recess of Congress, which, if true, would mean these members do not have authority to vote on anything, let alone the ambush election rules.
• Will there be appeals?  Most certainly.  If there is a new vote, then the actual rules themselves will have to be evaluated by a Court.  Which party appeals depends on whether another vote takes place.
• What happens next?  While the judge says elections will have to continue under "old procedures" we will have to see what that means.

As always, we will keep you posted of developments.

A federal appeals court has barred the NLRB's ability to require employers to post the employee rights poster while litigation over the legality of the rule continues.  

As we previously discussed, a Federal District Court in South Carolina ruled that the NLRB lacked authority to issue the rule.  This occurred after another Federal Court in the District of Columbia held that the rule was valid, but the enforcement mechanism was not.  The injunction came in the DC litigation.

Given all of the uncertainty, the DC Circuit Court of Appeals issued a Grant of Injunction Pending Appeal.pdf which effectively acts to stay the requirement pending resolution of the litigation.  The Court explained its reasoning as follows:

We note that the Board postponed operation of the rule during the pendency of the district court proceedings in order to give the district court an opportunity to consider the legal merits before the rule took effect.  That postponement is in some tension with the Board's current argument that the rule should take effect during the pendency of the court's proceedings before this court has an opportunity to similarly consider the legal merits.  We note also that the district court's severability analysis left the posting requirement in place but invalidated the primary enforcement mechanisms for violations of the requirement.  The Board has indicated that it may cross-appeal that aspect of the district court's decision.  The uncertainty about enforcement counsels further in favor of temporarily preserving the status quo while this court resolves all of the issues on the merits.

So, for the next several months at least, employers are not required to comply with the NLRB's posting requirement. We will keep monitoring the situation and will keep you informed here of new developments.

A federal judge in the District of Columbia handed employers a significant partial victory in the ongoing skirmish over the NLRB's attempts to require all employers under its jurisdiction to post a notice of employee rights.  As we have noted previously, the NLRB postponed the original November 14, 2011 compliance date, only to postpone it again after facing stiff resistance in the form of lawsuits challenging the new requirement.  A compliance date of April 30, 2012, was set in order to allow the courts to render decisions on the viability of the NLRB's regulations.  There are two significant pieces of litigation over the NLRB's rule.  The ruling discussed here concerns the challenge brought by the National Association of Manufacturers ("NAM").  The U.S. Chamber of Commerce also has a separate suit pending.

On March 2, 2012, Federal Judge Amy Berman Jackson handed down the split decision in the case of National Association of Manufacturers v. NLRB (Civ. Action No. 11-1629).pdf.  NAM, a trade association, challenged the NLRB's authority to require the rights poster, as well as the agency's contention that failure to post the notice could constitute an unfair labor practice. 

In her 46 page decision, Judge Jackson upheld the right of the NLRB to require the notice posting, but struck down the rules making it an unfair labor practice for an employer's failure to post the notice.

There are two parts to the NLRB's regulations on the rights poster.  Subpart A is the requirement that employers post the notice, and Subpart B concerns the agency's intended enforcement for employers that fail to post the notice.. 

Subpart A - Judge Upholds NLRB Requirement That Employers Post Rights Notice

NAM challenged the NLRB's authority to require employers to post the rights notice.  The theory for this contention is that in every piece of federal employment legislation where a notice of some sort is required to be posted (e.g., FMLA, FLSA, OSHA, etc.), the statutes all expressly require the responsible agencies to develop a notice for posting.  The NLRA is silent on this issue, and so the argument goes, Congress did not authorize the NLRB to make such a notice posting a mandatory requirement. 

Judge Jackson seemed to have little problem disposing of this issue in favor of the NLRB.  After a lengthy discussion of the NLRB's rulemaking authority and relevant caselaw, the Judge ruled:

Therefore, the Court cannot find that in enacting the NLRA, Congress unambiguously intended to preclude the Board from promulgating a rule that requires employers to post a notice informing employees of their rights under the Act.  Neither the text of the statute nor any binding precedent supports plaintiffs' narrow reading of a broad, express grant of rulemaknig authority.

So, absent a stay of this ruling pursuant to an appeal, the notice poster will be required as of April 30, 2012.

Subpart B - Enforcement Consequences For Failing To Post The Notice

NAM also challenged the NLRB's enforcement aspects of the rules.  

NLRB Cannot Make Failure To Post The Notice An Unfair Labor Practice

The NLRB rule states the consequences of failing to post the notice: "Failure to post the employee notice may be found to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed by NLRA Section 7. . ."  This is the most controversial and troublesome aspect of the rulemaking from a legal and practical perspective.  Yes, employers dislike having to post the notice at all, particularly in a labor relations climate that is more contentious than it has been in 20 years.  In the age of social media and instanteous information sharing, why must an employer be required to inform employees of the rights when such information is available from myriad sources?

What the NLRB attempts to do by these regulations, however, is to go much farther than mere publication of information.  By making the failure to post an actual unfair labor practice, the potential consequences for employers are extremely serious.  First, the NLRB's designation of a failure to post information that has never been required in the 77 years of the NLRA as interference, restraint or coercion of employee choice is quite a stretch.  The agency appears to be suggesting that an employer's failure to, in the future, give this information to employees interferes with free choice, an assertion that requires several leaps of logic.

Second, and most important, if the failure to post this notice is an unfair labor practice, then it could be grounds to overturn an otherwise properly held secret ballot election.  Yes, that's right.  As we have previously pointed out, the mere existence of an unlawful handbook policy could overturn a representation election, even where there is no evidence the policy played any part in an employee's choice on the secret ballot.  Indeed, the NLRB has ruled that the mere existence of the policy can overturn the election, even when employees are already represented by a uniion and seek to end such representation.  

Judge Jackson struck down this portion of the rule, stating "Plaintiffs maintain, and the Court agrees, that the agency lacked the authority to deem a failure to post to be an unfair labor practice under the Act."  In discussing the statutory framework and caselaw, the Judge concluded:

In other words, section [8(a)(1)](the provision of the NLRA making it an unfair labor practice to interfere with employee choice) prohibits employers from getting in the way - from doing something that impedes or hampers an employee's exercise of the rights guaranteed by [Section 7] of the statute.  It does not prohibit a mere failure to facilitate the exercise of those rights.

Judge Jackson went on to state that "nothing in this decision prevents the Board from finding that a failure to post constitutes an unfair labor practice...."  The Judge made clear, however, the Court's expectation of the agency if it was to assert that an emploiyer's failure to post is an unfair labor practice:

But the ruling does mean that the Board must make a specific finding based on the facts and circumstances in the individual case before it that the failure to post interfered with the employee's exercise of his or her rights.  The Court is not making an absolute statement that inaction can never be interference; rather this memorandum opinion simply holds that the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice.

In other words, and it seems incredible we are having such a discussion, the NLRB actually must prove in an unfair labor hearing that the mere failure to provide information that is readily available from any number of sources, interfered with an employee's Section 7 rights.  This is exactly the kind of analysis that should take place when it is asserted an employer's handbook provision is unlawful, but doesn't; there should be a requirement that the existence of the so-called overbroad language actually interferes with an employee's rights. Unfortunately, what really happens in handbook cases is the NLRB merely says certain language in an of itself interferes with Section 7 rights without any proof that anyone read it, was aware of it or that the policy otherwise held any significance.

NLRB Cannot Toll Statute of Limitations By Rule

The Judge also ruled that the NLRB cannot use the failure to post the notice to toll the NLRA's six month statute of limitations.  Judge Jackson noted, "the NLRA does not authorize the Board to enact a rule which permits it to toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted."  In reaching this conclusion, the Judge noted there exists extensive legislative history on the six month statute of limitations contained in the NLRA, and that in certain circumstances it is appropriate to toll the statute.  Such tolling is not automatic and must be supported by proof.  The Judge's opinon notes, "The Final Rule strips away the case-specific nature of the equitable tolling doctrine by imposing it as the rule rather than the exception. The Court found it particularly troubling that the NLRB's conception for the rule stated that the employer must prove that the tolling did not apply:

This turns the burden of proof on its head.  The plaintiff [the NLRB in unfair labor practice cases] generally bears the burden of proving that equitable tolling should apply in the individual case, but the rule demands that the employer prove that across the board, unlimited extension should not apply. 

In other words, the NLRB cannot use an employer's failure to post a notice to automatically toll the statute of limitations for other unfair labor practices alleged at the workplace. 

Free Speech Callenge Rejected

NAM also challenged the rule on free speech grounds, that the NLRB was compelling employers to make certain speech.  The Court rejected this argument ruling that "the Board's notice posting requirement does not compel employers to say anything" and that the poster falls into the category of "government speech."

The Judge concluded Subpart A (the notice posting requirement) could be severed from Subpart B, meaning absent some court intervention, the posting requirement will go into effect as planned.

It seems likely both sides will appeal the ruling.   Also, it is highly likely another Court soon will rule on these issues in the U.S. Chamber's litigation. We will keep an eye out for further developments.

The holidays used to be such a quiet time of year as people slowly peeled off to take time to enjoy the season.  This holiday season is different, of course.  With the impending departure of NLRB Member Becker by the end of this year, we anticipated a flurry of activity as the NLRB attempts to complete as much of its agenda as possible before it becomes incapacitated by having only two members. 

As expected, the NLRB made good on resolution to drastically change representation case handling rules. Today, December 21, 2011, the agency issued its Final NLRB Election Rules. These rules have an effective date of April 30, 2012.   The U.S. Chamber of Commerce and the Coalition for a Democratic workplace immediately sued to block implementation of these rules. Here is a copy of the Chamber of Commerce, et al. v. NLRB (Ambush Election Rule) Complaint).   

The final rules will alter the handling of representation case with the alleged purpose being, according to the NLRB, to "reduce unnecessary litigation in representation cases and thereby better enable the Board to better fulfill its duty to expeditiously resolve questions concerning representation."  To accomplish this, however, the proposed rules in effect  cede the Board's statutory authority and mandate to determine the appropriate bargaining unit to career employees in the NLRB's regional offices.  

The eight changes to the rules can be summarized as requiring the employer to accept the petitioned for unit, regardless of whether it is appropriate, or face an election on a much shorter timeframe.  Here is a snapshot of the changes to the rules:

First, the new rules will "expressly construe Section 9(c) of the Act . . . to state that the statutory purpose of a pre-election hearing is to determine if a question of representation exists."  The NLRB's Outline of Law and Procedure in Representation cases defines a question concerning representation as follows, "Normally, a question concerning representation is found to exist when the union has made a demand for recognition which the employer has refused." (Section 7-110).

Second, the new rules will amend existing rules to "ensure hearing officers presiding over pre-election hearings have authority to limit the presentation of evidence to that which supports a party's contentions and which is relevant to the existence of a question concerning representation."

These significance of these first two rule changes is to effectively give the hearing officer the discretion and authority to determine whether there should even be a hearing. These changes must be read in connection with the NLRB's adoption of the micro union standard in the Specialty Healthcare decision this past summer, where employers now must show an "overwhelming community of interest" in order for the regional director to order an election in a unit different than the one petitioned for by the union.  So, under the new rules, if the region decides that the employer's contentions about what constitutes an appropriate unit lack merit, then there will be no hearing or the hearing will be limited.

Third, the new rules give the hearing officer "discretion over the filing of post-hearing briefs, including the subjects to be addressed and the time for filing."  The effect of this is self-evident.  While it is intended to reduce the time that elapses between the filing of a  petition and the holding of the election, it means that the regional director will now have broad discretion to not longer consider any post-hearing written advocacy of a party's position.  This is unfortunate because, frankly, post-hearing briefs are an essential part of the process.  They ensure that all relevant legal authority is considered, and they also complete the record for purposes of appeals or post-election litigation.

Fourth,  the new rules eliminate the "parties' right to file a pre-election request for review of a regional director's decision and direction of election....until after the election."  This means that the Board itself will not become involved in a representation case until after an election has been held, which amounts to an abdication of its legal responsibility.

Fifth, the new rules eliminate the "recommendation that the regional director ordinarily not schedule an election sooner than 25 days after the decision and and direction of election to give time to the Board to rule on a pre-election request for review."  This is a function of the elimination of pre-election requests for review to the Board.

The fourth and fifth changes made by the new rules, read together, are very significant.  They essentially mean that if an employer challenges the appropriateness of the petitioned for unit, rather than enter into a stipulated election agreement, the Regional Director can set an election much sooner than 25 days and there will be no right to appeal until after the vote has occurred. This could effectively punish employers who cannot accept the union's proposed unit but instead  seek a unit that fits within the organizational structure of their business.  Employers will be forced with accepting the prosoed unit and get more time to communicate with employees or risk challenging the unit and having the vote held much sooner.

Sixth, the new rules will be amended to "make explicit and narrow the circumstances under which a request for special permission to appeal to the NLRB will be granted."  This closes down any opportunity to make a special appeal to the NLRB prior to the election from ruling by the hearing officer.

Seventh, the new rules eliminate post-election review as a matter of right, ostensibly to "create a uniform procedure for resolving election objections and potentially outcome-determinitive challenges in stipulated and directed election cases and to provide that Board review of regional directors' resolution of such disputes is discretionary."  This places even more authority in the regional director's hands to decide disputes and allows the Board the ability to simply refuse to  hear an appeal.  Thus, in some cases, an entire representation case proceeding could be completed with no involvement of the Board -- again, an abdication of the Board's statutory responsibility.

Eighth, the new rule eliminates parts of the existing regulations deemed redundant or rendered unnecessary because of the changes made by the new rules.

In the final analysis, the rules add significant penalties to challenging the appropriateness of a unit.  The union can now petition for the smallest unit it wants and is almost guaranteed it will get a vote on it regardless of whether such a unit makes any sense in the employer's structure. It would be possible, for example, for an employer to now be faced with multiple bargaining units despite the actual integration of its workforce.  Now, that's a lump of coal we did not need during this holiday season (or any other time for that matter).

The litigation, of course, will play an important part in how this plays out.

Stay tuned.  We will keep you posted.

Contracting with the Department of Defense ("DoD"), National Aeronautics and Space Administration ("NASA") and General Services Administration ("GSA") will become more burdensome after December 2, 2011, according to final regulations published today.  The regulations, which were proposed on April 14, 2010, and were adopted without any changes (no surprise there), deem certain labor relations costs unreimbursable by the federal government.  The new regulations, set forth in bold, adds to the existing regulation:

(a) Costs incurred in maintaining satisfactory relations between the contractor and its employees (other than those made unallowable in paragraph (b) of this section), including costs of shop stewards, labor management committees, employee publications, and other related activities, are allowable.

(b) As required by Executive Order 13494, Economy in Government Contracting, costs of any activities undertaken to persuade employees, of any entity, to exercise or not to exercise, or concerning the manner of exercising, the right to organize and bargain collectively through representatives of the employees' own choosing are unallowable.  Examples of unallowable costs under this paragraph include, but are not limited to, the costs of-

(1) Preparing and distributing materials;

(2) Hiring or consulting legal counsel or consultants;

(3) Meetings (including paying the salaries of the attendees at meetings held for this purpose); and

(4) Planning or conducting activities by managers, supervisors, or union representatives during work hours.

In theory, the rule purports to simply say the contractor cannot charge the government for certain expenses, which sounds good, especially in these trying economic times.  Practically speaking, however, this rule will do nothing but cause problems for non-union employers while rewarding unionized contractors.  Here are a few examples:

• The rule says it is neutral and applies to statements for or against a union, but let's be honest:  how many unions are federal contractors that would fall under this rule? 
• The rule on its face allows charges for "union stewards" to work on government paid time, but disallows a supervisor expressing his or her view about unionization.  And union stewards always act in a manner that is efficient for the business, right?  What if the supervisor's view is personally held and not one of employer policy, would the employer have to deduct the estimated amount of the conversation from any billing to the government? If so, how would it estimate the time? 
• If an employee asks a question of his or her supervisor about unions, must the supervisor account for the time spent answering the question?
• If an employee asserts that he or she had a conversation with a supervisor about the union, what is considered persuader activity?  What if the supervisor's answer is completely factual?  Who decides what is persuader activity and what is not? Will the government put the contract in jeopardy based on the allegation?
• A union can use whatever resources it gets, often indirectly from the government through public sector dues payments, to use lawyers and hire organizers, but these expenditures are not affected by the rule.  The private sector employer, however, must segregate such costs.

In sum, this change while facially neutral does not even withstand the slightest scrutiny.   Like many other regulations popping out of the government like so many gumballs from a machine, this one too may be challenged in the courts.

The changes the administration forces onto federal contractors foreshadow what it intends for all private sector employers.  For example, the federal government required contractors to post the NLRB rights poster months before the NLRB issued the broader rule covering all employers under its jurisdiction.  Likewise, this final rule is similar to the Department of Labor's attempt to narrow the LMRDA's advice exemption, about which we reported here.

Concluding that "many employees protected by the NLRA are unaware of their rights under the statute," the NLRB today issued a Final Rule today on Notification of Employee Rights under the National Labor Relations Act.pdf.  As of November 14, 2011, all employers falling under NLRB jurisdiction will be required to post a notice the content and size of which has tentatively been decided to be the same as the notice currently required to be posted by federal contractors.pdf pursuant to Executive Order.  The NLRB says it will make the notice available at no cost to employers who will be able to get it from the NLRB offices or electronically through the NLRB's website.

There is no recordkeeping requirement; however, failure to post a notice would be considered an unfair labor practice.  Although the Board has indicated such a violation would be technical, in reality a failure to post could have serious implications.  As the Board noted in its FAQs on this issue:

The Board expects that, in most cases, employers who fail to post the notice are unaware of the rule and will comply when requested by a Board agent.  In such cases, the unfair labor practice cases will be closed without further action.  The Board may extend the 6-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer.  If an employer knowingly and willingly fails to post the notice, the failure may be considered evidence of unlawful motivation in an unfair labor practice case involving any other alleged violations of the NLRA.

Although unstated, the failure to post could have serious consequences in representation campaigns and elections as well.  As we previously noted, the NLRB has held that an overbroad handbook provision could result in the results of an representation election being overturned, even when there is no evidence the employees even were aware of it.  The same reasoning would apply here:  a violation of the law, even a technical and arguably inconsequential one, could be deemed enough to overturn an election.

Overall, the rulemaking itself is not terribly surprising.  The NLRB recevied 7,034 comments (some of which it acknowledges were counted twice because they were filed electronically and by mail), which, in today's labor relations climate, ran along the spectrum of "You should do more" to "You can't do it because it you don't have the authority."  Weighing in at 194 pages, the bulk of the final rule is made up of the NLRB discussing the comments it received.  For example:

The contention that the right to refrain from union activity is "buried" in the list of affirmative rights or that the Board is biased in favor of unionization because of the choice of placement is with out merit.  The list of rights in the proposed notice is patterned after the list of rights in Section 7 of the NLRA. . .

The takeaways for employers:

• Unless successfully challenged, the notice must be posted as of November 14, 2011.
• The notice must be posted where other notices for employees are customarily posted.  If the employer makes such notices available on an intranet, it must do so in this case as well.
• There is no recordkeeping requirement, but failure to post is an unfair labor practice.
• The failure to post could have implications on other unfair labor practice situations and representation elections.
• The notice must be posted even in places where a union is already in place.
• Post it.  It is not worth the hassle to not do so.

The mid-point of Summer has passed.  Although the NLRB has not issued a major decision in several weeks, the agency has not been slacking off this Summer.  In a typical year, August and September are the busiest months for the NLRB, because the federal government's fiscal year ends September 30.  During the final weeks of the fiscal year the NLRB attempts to push out as many decisions as it can.  The agency is largely statistically driven, and so more decisions means a greater justification for a renewed or increased budget.

This, of course, is not a typical year.  The current NLRB has a very active, if not activist, agenda.  There not only are a number of potentially far-reaching cases it has yet to decide, but the agency also has proposed rulemaking to drastically upend the current manner in which representation elections are held.  Add into the mix Chairman Liebman's appointment is set to expire on August 27, one can expect a storm of activity from the NLRB in the coming weeks.  Here is a snapshot of the important cases and the rulemaking initiatives currently pending: 

• Speciality Healthcare (NLRB Case No. 15-RC-8773).  In this case, the NLRB wondered aloud whether it could set a presumptive rule for the appropriateness of bargaining units in certain segments of the healthcare industry. The problem, of course, is that anyone who has worked in business environment knows that there is no uniformity to how an employer structures its business, even within industries.  A decision holding otherwise will make it much easier for unions to organize because it will remove Section 9(b) of the Act's requirement that the NLRB actually decide, on a case by case basis, the appropriateness of a unit.  We posted in detail on this important issue in March after we filed a brief on behalf of Retail Industry Leaders Association. 
•  Lamons Gasket Company (NLRB Case No. 16-RD-1597).  In this case the NLRB may revisit (read- overturn) the exception to the voluntary recognition bar set forth in Dana Corp Metaldyne, 351 NLRB 434 (2007).pdf.  In Dana, the NLRB set a rule where employees may challenge voluntary recognition of a union by their employer by filing a petition for an election within a certain period of time.  With all the discussion about the NLRB's processes, the NLRB in Dana pointed out something that sometimes gets lost in the debate.  "Finally, although critics of the Board election process claim that an employer opposed to union representation has a one-sided advantage to exert pressure on its employees throughout each workday of an election campaign, the fact remains that the Board will invalidate elections affected by improper electioneering tactics, and an employee's expression of choice is exercised by casting a ballot in private.  There are no comparable safeguards in the voluntary recognition process."  Id. at 439. 
• Hawaii Tribune Herald (NLRB Case No. 37-CA-7043 et al.).  This is another case where the NLRB invited interested parties to file briefs about whether it should it should change its 32 year rule that witness statements made to the emloyer need not be turned over to the union prior to an arbitration hearing. As noted in the previous post on this issue, the NLRB's rule is designed to protect the witnesses from intimidation.  A reversal of this decades old rule will change the way arbitration cases are handled.
• D.R. Horton (NLRB Case No. 12-CA-25764).  The NLRB invited briefs on the issue of whether an employer's requirement that each employee sign an arbitration agreement which expressly waives the right to class action relief violated Section 8(a)(1). We previously posted on this important issue. The issue in this case really comes down to whether "all" group activity, no matter what the nature, is also "protected, concerted" activity under Section 7 of the NLRA.  We filed a Brief for the Retail Industry Leaders Association -- Amicus Curiae.pdf on this issue.  While one can certainly see the similarities between Section 7 activity and employees who wish to bring a class action against their employer, there are also important distinguishing factors.  The entire NLRA concept of group activity is designed to have employees acting in concert toward a common goal; there is interaction and cohesiveness. Under the NLRA, the group must achieve majority status before it can act on behalf of the whole.   In many class actions, the opposite is often true.  The vast majority of employees are not even aware the lawsuit is pending.  In many cases the "class representatives," often a tiny fraction of an overall workforce, can settle the entire matter (for their own benefit, of course), and then notify the rest of the employees what happened.  There are great differences between the two types of activity.
• Rulemaking. Of course, the NLRB has moved forward with its efforts to force "quickie elections" on employers through rulemaking.  The NLRB held hearings on the matter on July 18-19.  The changes, if promulgated, would reduce the amount of time between the filing of a petition and the election from about 42 days now to far fewer days.  The need for such drastic change is mystifying.  The NLRB itself in its own  Performance and Accountability Report FY 2010.pdf stated that it met or exceeded its strategic goals for processing representation petitions, which raises serious questions of the necessity for such drastic changes.  The U.S. Chamber of Commerce has drafted a very good Fact Sheet On Quickie Elections.pdf detailing the proposed rules, and how they would change the current process.  Comments on the rulemaking are due August 22, 2011, so employers who wish to get involved should draft comments to the NLRB (there is a draft letter in the U.S. Chamber's materials).

As one can see, a storm of NLRB activity is headed this way.  We will certainly be monitoring it as its clouds continue to gather.  Employers need to prepare for the possibility that many areas of NLRB law and process, some decades old, will be changed in the coming weeks.  We will, of course keep you posted on all developments as they occur.