Legal Updates

NLRB Continues Pro-Union Course, Raising Numerous Compliance Challenges For Employers

In recent months, the National Labor Relations Board (“NLRB” or “Board”) has taken a number of bold – and highly controversial – actions to further its pro-union agenda.  Specifically, the Board has:

• Filed a formal complaint alleging that Boeing Corporation unlawfully decided to locate new work in South Carolina in order to punish Boeing employees in Washington state for engaging in strikes;
• Promulgated a new regulation that would require most employers to post a workplace notice informing employees of their rights under federal labor law; and
• Proposed new rules for union elections that would dramatically reduce the time available to employers for challenging voting eligibility and other aspects of the proceedings.

This article summarizes these recent Board actions and makes recommendations on how employers can minimize or eliminate their exposure to liability under the National Labor Relations Act (the “NLRA”) in light of them.

Boeing Complaint

In April, the Board filed a complaint against Boeing Corporation to enjoin Boeing from carrying out new production work in South Carolina rather than Washington.  The Board alleges that Boeing’s decision was in retaliation for ongoing, costly union activity that has taken place at Boeing’s Everett, Washington facility.

In recent years, Boeing’s Everett workers have engaged in a number of strikes, which have proved very costly for Boeing.  For instance, a 2008 strike in Everett was reported to cost Boeing approximately $1.8 billion.

Subsequently, when Boeing decided to open a second assembly line for its new 787 Dreamliner jet, the company chose to do so in North Charleston, South Carolina, rather than in Everett, where work on the Dreamliner was already being carried out.  South Carolina is a right-to-work state without a strong union presence.

The union representing Boeing’s Everett workers filed an unfair labor practice (“ULP”) charge alleging that Boeing’s decision was in retaliation for the Everett strikes.  The Board agreed and filed a complaint seeking to force Boeing to shift the new assembly line from South Carolina to Washington.

The Board’s complaint has sparked a firestorm of criticism.  Employer groups contend that the Board is interfering with an employer’s fundamental right to decide where to locate its operations.  Indeed, until the dispute is resolved (which may take years), it will be difficult for Boeing to determine if it should invest further in the South Carolina facility.

Union-Rights Poster

The NLRB has issued a regulation requiring employers to post an oversized notice (11×17 inches) of employee rights under the NLRA.  This regulation, which applies to most private-sector employers, becomes effective on January 31, 2012.

This is the first time that the Board has required all employers covered by the NLRA to post and maintain such a notice.  Historically, the Board has ordered employers to post such a notice only if found to have committed a ULP—and, then, only for 60 days.  (Recently, though, the Obama Administration, via a U.S. Department of Labor regulation, has required federal contractors to post and maintain a similar notice.)

Employer groups have challenged the new regulation in court, contending that the Board cannot order an employer to do anything unless and until the employer is found, after formal proceedings, to have violated the NLRA.  In December, the presiding court will hear oral argument on whether to enjoin this regulation from going into effect.  Meanwhile, employers should prepare to comply with it by January 31, 2012.

Union Election Rules

The Board has issued proposed rules that would alter its procedures for conducting union elections by:

• Requiring Board hearings on union representation issues (e.g., which employees should be included in a proposed bargaining unit) to begin no later than seven days after a petition for a union election is filed;
• Reducing the employer’s deadline for furnishing the union with the names and addresses of employees eligible to vote in the election from seven days after the Board grants the union’s election petition to two days thereafter.  In addition, employers would be required for the first time to include employees’ work locations, shifts, job classifications and e-mail addresses; and
• Permitting the Board to proceed with a union election even where the voting eligibility of up to 20% of the proposed bargaining unit has not yet been resolved.  Traditionally, disputes concerning voting eligibility have had to be resolved before the election could take place.

These proposed changes have prompted literally thousands of comments from employer groups, which contend that employers would not have sufficient time to respond to election petitions under such a regulatory scheme.  The Board is now determining whether to rescind, modify or implement these proposed changes.  If the changes are implemented as proposed or in substantially similar form, then legal challenges by employer groups will be likely.

Recommendations For Employers

In light of these recent significant and controversial Board actions, employers are encouraged to:

• Consult with labor counsel before transferring or subcontracting work carried out by unionized employees.  As the Boeing complaint suggests, in some cases the Board may argue that such a decision is unlawfully motivated and, therefore, a violation of the NLRA.
• Gain a thorough understanding of the requirements that the NLRA imposes on unionized and non-unionized employers alike.  Some employers may be surprised to learn that even non-unionized employees generally have a right to act collectively to seek improvements in their wages or other terms and conditions of employment.
• Begin preparations for a potential union election as soon as an employer suspects it is a target of union organizing.  As the Board’s proposed election rules would dramatically increase the pace of union elections, employers need to be prepared to immediately raise any and all challenges to the proposed vote.
• Take active steps to minimize the risk that employees will vote to unionize.  These steps should include adopting and enforcing written policies that (i) specify when employees are permitted to engage in workplace solicitation and distribution of literature, and (ii) prohibit non-employees from gaining unauthorized access to the premises. (Note:  these policies are governed by complex legal standards, so they should always be reviewed by labor counsel.)   Also, employers should provide training to assist managers in identifying workplace issues that may lead to union organizing or ULP charges.

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Please do not hesitate to contact us if you have questions about these recent developments, or if we can assist your organization with labor issues or in any Board proceeding.