In honor of Labor Day, I wanted to devote this blog post to a recent flurry of pro-union activity. While these are federal law labor law issues, they will most certainly impact California employers.
So what’s going on? You may remember a few years back when we all thought the Employee Free Choice Act (EFCA) might pass. Under EFCA, secret ballot elections were to be wiped out in favor of mandatory card check, there would be tighter timelines for bargaining, mandatory arbitration, and increased penalties for employers. It was a pro-labor panacea. But no dice. The economy tanked and EFCA went down along with it.
So then what happened? The Obama Administration appointed two pro-union members to the National Labor Relations Board (NLRB), Craig Becker and Mark Pearce, who joined Wilma Liebman (a Clinton appointee elevated to Chairman by President Obama).
Given the make-up of the NLRB, what was predicted? Most of us labor attorneys anticipated there would be expanded rule making to try to implement some EFCA-type changes, that there would be expedited elections, and that other actions would be taken to make opposing organizing campaigns or disputing election results more difficult for employers.
And what has happened recently? Just that. Here are the highlights:
1) The NLRB issued a final rule requiring employers, even those without unionized workforces, to post a notice informing employees of their rights to unionize. The posting isn’t required until November 14, 2011 and will be available for free on the NLRB’s website around November 1st.
2) The NLRB issued proposed rules to expedite elections and shorten the amount of time for employers to fight off a union campaign.
3) The Department of Labor proposed regulations that would make it very hard for attorneys to advise employers in union organizing campaigns.
4) Three NLRB decisions overruled the prior administration’s pro-employer holdings and made it more difficult for employers to challenge a new union’s status or an incumbent union’s representation when a business is sold, and also made it more difficult to challenge the scope of a bargaining unit.
Of note, all of this happened just before Chairman Liebman’s last day on the job. Coincidence? Not a chance. Happy Labor Day!