The Obama NLRB is Rapidly Changing the Law Regarding Unions and Contractors.
By: Frank L. Carrabba

The National Labor Relations Board ("NLRB" or "Board") is taking unprecedented actions to change the law in order that unions may organize employees more easily. First, the Board issued a rule requiring all employers within its jurisdiction (except the Postal Service) to post an "Employee Rights" poster advising employees of their rights under the National Labor Relations Act (NLRA). In addition, this poster also lists examples of potential unfair labor practices (ULP) that may be committed by employers and unions. Not unexpectedly, the Obama NLRB lists many more employer ULPs than those that may be committed by unions. The poster can be found at the NLRB's website, www.nlrb.gov. Currently, the rule is being contested in the courts. On March 2, 2012, in one of the cases contesting the poster's legality, a federal district court judge in Washington, D.C. found that the NLRB could require businesses to put up the poster, but limited how the Board can enforce the requirement. The poster must be displayed by April 30, 2012.

Second, the Board on December 22, 2011, adopted a final rule amending its election case procedures to, in its words, "reduce unnecessary litigation and delays". The real effect of the rule is to shorten the time for employers to communicate with their employees regarding the union and election procedures. Prior to the rule, the average time from the union's filing of a petition for an election to the date of the election was about thirty-eight (38) to forty-two (42) days. These new rules will reduce that time to between fourteen (14) to twenty-four (24) days. The new rule has been labeled by employers the "NLRB Ambush Election Rule". The Board tabled for a later date additional changes it had proposed, including requiring employers to provide the union a voting list that includes the employees' home phone number and email address. The Board is expected to take up these additional changes by the end of this year. This rule goes into effect on April 30, 2012, the same day employers are required to post the "Employee Rights" poster. The legality of this rule is also being litigated by employer groups.

Lastly, on December 31, 2011, the "recess" appointment of union lawyer Craig Becker expired, leaving the NLRB without a quorum to issue decisions. However, on January 4, 2012, President Obama made three "recess" appointments to the Board. Republican members of the Senate claim that they were not technically in "recess" at the time, calling the appointments unconstitutional.

With the rapidly changing landscape at the NLRB, employers must educate their supervisors as to what they can and cannot do under the NLRA. AGC-Houston Chapter will hold a BBB on May 23, 2012 on this subject. Plan to be there.

FRANK L. CARRABBA

Frank Carrabba has been engaged in the practice of labor and employment law for over forty (40) years. He represents employers exclusively in all areas of labor and employment law, including alleged employment discrimination, NLRB charges against employers, union organizing campaigns, Davis Bacon Act related issues, alleged wrongful terminations and wage and hour issues.

His first trial resulted in a U.S. Supreme Court decision. He began his career at the NLRB in Washington, D.C. in 1971.

He is board certified in labor and employment law by the Texas Board of Legal Specialization. He has been a member of the Employment Practices Committee of the AGC-Houston Chapter for many years and has twice edited the Labor Relations Guide and the Open Shop Field Supervisor's Handbook for the Chapter.

Mr. Carrabba can be reached at 713-621-8363

 

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