The NLRB announced today that it was going to hold a vote on its proposed regulations to upend the well established and longstanding representation case procedures.  According to the NLRB’s announcement today, the vote is over “whether to adopt a small number of amendments” proposed earlier this year. This may well be the understatement of the year as very few people, if any, believe that the NLRB will do anything short of adopting all of the proposed changes, not just a few unidentified amendments.

In fact, Member Hayes, in a scathing letter to Congress, also dated today, asserts his two colleagues are determined to issue a final rule before the expiration of Member Becker’s term at the end of the year. In this letter, Member Hayes levels pointed criticism of the agency’s rulemaking process as contrary to precedent and practice:

In my dissent to the Notice of Proposed Rulemaking, I criticized the majority’s use of ‘a rulemaking process that is opaque, exclusionary, and adversarial,’ in contravention with the Administrative Procedure Act, the Government in Sunshine Act, and President Obama’s January 21, 2009, Memorandum of Transparency and Open Government, and in sharp contrast to the Board’s procedural practice during the 1987-1989 rulemaking for appropriate bargaining units in the healthcare industry.  That criticism apparently made no impression on my colleagues, who have continued this process in the same manner, and without my participation; and who now have made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker’s without regard to Board tradition or rule.

One wonders what the environment must be on the 11th floor of the NLRB where all the Members have their offices.

Of course, this latest news, while hardly surprising, makes one wonder the thought process of the NLRB. As noted earlier here, the NLRB postponed the requirement that all employers under its jurisdiction post rights notices after a public firestorm, accompanied by several lawsuits challenging the rule.  That outcry was over a notice posting; what will the public’s response be to this seemingly predetermined outcome?   Litigation is certain to be filed.  The NLRB’s own public divisions are unlikely to calm the debate.

The NLRB’s vote will be made at a public meeting and streamed live on the internet.  More to come. . .

Posted in Bargaining units, Due Process, NLRA, NLRB, Non-Union employers, Representation Elections, Rights Poster, Rulemaking, Section 9(b), Section 9(c)(5)
Tags: NLRB, public hearing, quickie elections, Representation Elections, Rulemaking
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Photo of Mark Theodore Mark Theodore

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice…

Mark Theodore is a partner in the Labor & Employment Law Department. He has devoted his practice almost exclusively to representing management in all aspects of traditional labor law matters throughout the U.S. He is Co-Chair of Proskauer’s Labor-Management and Collective Bargaining Practice Group.

Some recent highlights of his career include:

  • Successfully defended client against allegations that it had terminated a union supporter and isolated another. T-Mobile USA, Inc., 365 NLRB No. 15 (2017).
  • Successfully appealed NLRB findings that certain of client’s written policies violated the National Labor Relations Actions Act.  T-Mobile USA, Inc., 363 NLRB No. 171 (2016), enf’d in part, rev’d in part 865 F.3d 265 (5th Cir. 2017).
  • Represented major utility in NLRB proceedings related to organizing of planners.  Secured utility-wide bargaining unit. Bargained on behalf of grocery chain.  After negotiations reached an impasse, guided the company through lawful implementation of five year collective bargaining agreement.
  • Coordinated employer response in numerous strike situations including a work stoppage across 14 western states of the client’s operations.

Mark has extensive experience representing employers in all matters before the NLRB, including representation petitions, jurisdictional disputes and the handling of unfair labor practice charges from the date they are filed through trial and appeal. Mark has acted as lead negotiator for dozens of major companies in a variety of industries, including national, multi-unit, multi-location, multi-employer and multi-union bargaining. Mark has handled lockout and strike situations, coordinating the clients efforts.

In addition, Mark has handled hundreds of arbitrations involving virtually every area of dispute, including contract interest arbitration, contract interpretation, just cause termination/discipline, benefits, pay rates, and hours of work.

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