Trends at the National Labor Relations Board

James N. Foster, Jr.McMahon Berger, P.C.

2730 N. Ballas Rd., Suite 200St. Louis, Missouri 63131

(314) 567-7350(314) 567-5968 – Facsimile

foster@mcmahonberger.com

The National Labor Relations Board•On March 27, 2010, President Obama made

15 recess appointments, including the appointments of Craig Becker and Mark Pearce to the NLRB.

•Before his appointment to the Board, Becker was associate general counsel for the SEIU; Pearce was a private sector labor lawyer representing unions.

Craig Becker’s Views• While acknowledging that “at first blush it might

seem fair to give workers the choice to remain unrepresented.” He goes on to say that, “Just as U.S. citizens cannot opt against having a congressman, workers should not be able to choose against having a union as their monopoly-bargaining agent”

• “Employers should be stripped of any legally cognizable interest in their employees’ election of representatives”

• Employers should have no right to raise questions concerning voter eligibility or campaign conduct.”

NLRB Finalizes New Posting Obligations•NLRB issued final rule on August 30, 2011

•Effective November 14, 2011, all employers covered by the National Labor Relations Act must post a notice to their employees informing them of their rights to organize and collectively bargain

NLRB Finalizes New Posting Obligations• Requirements of Notice:

▫Must be 11 inches by 17 inches▫Must be posted where other workplace notices

are posted▫Must be electronically posted/distributed if

employer typically communicates in such a manner with its employees

▫Must be posted in foreign language if 20% of employees speak foreign language

NLRB Finalizes New Posting Obligations•Notice can be obtained from NLRB,

www.nlrb.gov, or commercial providers•Failure to post may result in an unfair

labor practice, tolling of six months statute of limitations, and a finding of unlawful motive in other matters pending before the NLRB.

NLRB Finalizes New Posting Obligations• What does Notice say?

▫ Describes employees’ rights under the NLRA, including the right to: Organize a union Form, join or assist a union Bargain collectively Discuss wages and benefits with coworkers Raise work-related complaints with the employer Strike and picket Choose not to do any of these activities

NLRB Finalizes New Posting Obligations• Lists employer unfair labor practices

▫Unlawful solicitation and distribution rules▫Interrogation▫Adverse job action for engaging in protected

activity▫Threats, such as to close facility if employees

go union▫Making promises to discourage union support▫Surveillance of union activities

NLRB Proposed Rulemaking• On June 22, 2011, the NLRB proposed new rules

regarding NLRB elections• Voter eligibility Lists (Excelsior Lists)

▫ The proposed rule would require the employer to produce a voter eligibility list within 2 days after the direction of the election. (Currently 7 days)

▫ Further, the voter eligibility list would require substantially more information, including employees’ telephone numbers, positions and email addresses.

NLRB Proposed Rulemaking• Pre-Election Hearings

▫ The proposed rule would also permit the employer to obtain a pre-election hearing only upon a showing of substantial evidence (by submitting a Statement of Position).

▫ Even upon a showing of substantial evidence, under the proposed rule, a hearing would only be granted at the discretion of the Regional Director.

• Post-Election Objections▫ The proposed rule would also reduce the time period to file

post-election objections from 14 days to 7 days.

NLRB Proposed Rulemaking• Time of Elections

▫ Based on the NLRB timetable, an election could be held less than 20 days after a representation petition is filed (pre-election hearing 7 days after petition is filed, 2 days to provide voter eligibility list and election held within 10 days)

▫ This substantially limits an employer’s ability to prepare an informational campaign for its employees about the pros and cons of unionization.

Labor Board Plan to Ease Way for Unions