By:  Kenneth R. Dolin

The Employee Free Choice Act is dead and the “streamlined” election and posting rules that the NLRB attempted to enact are in limbo, but the current Board has “swung the legal pendulum” toward labor unions in the following areas:

  • Granting more deference to union’s petitioned-for units as “an” appropriate unit, especially where it is presumptively appropriate, while limiting findings of supervisory status.
  • Expanding “protected” and “concerted” activity, while limiting “unprotected” activity.
  • Expanding the relevance of information requested by labor unions, especially financial information requested by a union during collective bargaining.
  • Expanding  findings of surface bargaining and unlawful unilateral changes, while limiting findings of the existence of a bona fide impasse.
  • Limiting findings of waivers of bargaining rights.
  • More strictly scrutinizing the context of lockouts and permanent replacement of strikers.
  • Expanding remedies for unlawful employer conduct, including increased use of preliminary injunctions under Section 10(j).
  • More strictly scrutinizing ALJ credibility findings in favor of employers.

It appears that the Obama Board will continue its pro-labor union agenda at least through the end of the year, if not even longer because the Democratic appointees will likely be a majority at least through August 27, 2013.  Member Terrence Flynn, a Republican appointee, has announced that he will resign effective July 24, 2012 and that he will not participate in any further Board decisions.  It is unlikely that Flynn’s seat will be filled before year end, if not longer.  The term of the other Republican appointee, Brian Hayes, expires next, on December 16, 2012.  The following term to expire is that of Democratic appointee Mark R. Pearce.  His term expires on August 27, 2013.  Finally, the terms of the two Democratic 2012 recess appointees, Sharon Block and Richard Griffin, will not expire until Congress adjourns at the end of its 2013 session.  The validity of these two recess appointees, however, is now being challenged in the courts.

Based on the likely composition of the Board continuing to contain a majority of Democratic appointees for the foreseeable future, the undersigned predicts the following representation case trends for the remainder of 2012:

  • More union petitions.
  • Smaller bargaining units found appropriate.
  • More unresolved pre-election disputed issues, especially regarding supervisory status.
  • Faster elections.
  • More elections occurring off-site.
  • More union wins in elections.

As to unfair labor practices, we will likely see the following trends for the remainder of 2012:

  • Continued expansion of protected activity, especially in contexts of union activity, employee complaints, or social media.
  • Continued expansion of employers’ bargaining obligations, especially in the contexts of information requests and impasses.
  • More findings of unfair labor practice strikes and unlawful lockouts.
  • Continued expansion of remedies against employer conduct found unlawful, including preliminary injunctions under Section 10(j).

As a result, management should consider taking the following steps:

  • Reviewing its work rules for legality, and recognizing the risks of “pushing the envelope.”
  • Watching what is said at the bargaining table.
  • Strictly scrutinizing any refusals to provide requested information requested by a labor union, especially financial information requested by labor unions during negotiations.
  • Practicing positive employee relations in anticipation of greater organizing, smaller units and faster elections.
  • Deciding whether and how to review individual arbitration agreements and separation agreements for non-supervisory employees.
  • Considering the broader definition of “protected, concerted activity” when making disciplinary decisions, including in the non-union context.

Finally, it is likely that Board decisions will be more strictly scrutinized in the federal appellate courts and fewer Board decisions will be enforced.  Accordingly, employers that lose before this Board should consider the viability of an appeal before the U.S. Court of Appeals in the relevant jurisdiction, particularly where the Board decision deviates from precedent.