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October 6, 2011

The National Labor Relations Board Oct. 5 postponed until Jan. 31, 2012, the effective date of its controversial regulation requiring most private employers in the United States to post a notice informing employees of their rights under federal labor law.

NLRB posted a website notice of the postponement of the regulation, which previously was scheduled to take effect Nov. 14, about an hour before Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, announced that he introduced the “Workforce Democracy and Fairness Act” (H.R. 3094). Kline’s bill would make substantial changes in the National Labor Relations Act’s provisions for resolution of questions concerning union representation of employees.

The same afternoon, the House Small Business Committee conducted a hearing in which Republicans and Democrats again divided over recent actions by the board and its acting general counsel. Committee Chairman Sam Graves (R-Mo.) charged that “the current NLRB board has been particularly activist in its agenda, while Ranking Member Nydia M. Velazquez (D-N.Y.) said the agency has been “a fair conduit for resolving labor-management problems.”

The NLRB announcement delays the effective date of a rule that was proposed by a divided board in December 2010 and published as a final rule in the Aug. 30 Federal Register (76 Fed. Reg. 54006).

The proposed rule, which drew heavy comment and opposition by business groups, would require employers subject to NLRB’s jurisdiction to post an 11-by-17 inch notice advising employees of their rights under the NLRA. Employers that use electronic communications to advise employees of company policies would also be required to post the NLRB notice in a similar manner.

NLRB’s Oct. 5 announcement said the effective date of the notice posting rule was being pushed back “in order to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses.”

“The decision to extend the rollout period followed queries from businesses and trade organizations indicating uncertainty about which businesses fall under the Board’s jurisdiction, and was made in the interest of ensuring broad voluntary compliance,” the agency’s Office of Public Affairs said in the statement.

The board’s action will allow federal judges in Washington, D.C., and South Carolina additional time to consider legal challenges to the rule.

The National Association of Manufacturers and the Coalition for a Democratic Workplace have filed one such challenge in the U.S. District Court for the District of Columbia (National Association of Manufacturers v. NLRB, D.D.C., No. 11-cv-1629) and the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business have filed another (National Right to Work Legal Defense & Education Foundation Inc. v. NLRB, D.D.C., No. 11-1683).

After learning of NLRB’s postponement of the notice rule’s effective date, Judge Amy Berman Jackson consolidated the two lawsuits and scheduled a hearing on the challenges for Dec. 19.

The U.S. Chamber of Commerce and the South Carolina Chamber of Commerce filed a third lawsuit challenging the NLRB rule (Chamber of Commerce of the United States v. NLRB, D.S.C., No. 11-2516), but the court has not set a schedule for considering that case.

House Bill Would Amend Section 9 of NLRA

Kline’s bill, co-sponsored by 14 of the 21 Republican members of his committee, would amend NLRA Section 9(b), which presently gives the board the authority to determine whether “the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision” of an employer’s workforce.

H.R. 3094 would substitute a lengthy provision containing an eight-factor test of whether employees share a sufficient community of interest to be grouped in a single unit. The legislation would provide that the question of whether additional employees should be included in a proposed voting unit would be determined by whether those employees “share a sufficient community of interest” with workers in the proposed unit.

The board held in Specialty Healthcare & Rehabilitation Center, 357 N.L.R.B. No. 83, 8/26/11, that in some cases where the inclusion of additional employees in a proposed unit is disputed, they should not be included unless they share an overwhelming community of interest with the proposed unit.

Kline’s bill would limit the application of an “overwhelming community of interest standard” to cases involving “proposed accretions to an existing unit.”

The bill would also affect NLRB procedures in representation cases. The board has proposed rule changes aimed at streamlining the processing of election cases and reducing the elapsed time in many cases from the filing of an election petition to the actual conduct of balloting.

Kline’s proposal would limit the board’s discretion in representation case proceedings, requiring that the board allow a minimum of 14 days before a pre-election hearing on representation case issues and prohibiting the agency from conducting an election less than 35 calendar days after the filing of a petition.

The bill would also address a controversy over NLRB’s proposal that an employer be required before an election to provide the union with home address information on employees, including e-mail addresses. Business groups and some individuals have objected to the proposal.

Kline’s proposal would provide that the list used in such election cases would include the names of employees “and one additional form of personal employee contact information (such as telephone number, email address or mailing address) chosen by the employee in writing.”

Kline announced that the Education and the Workforce Committee will hold an Oct. 12 hearing on the bill.

In the House Small Business Committee, members heard from a representative of the National Federation of Independent Business and the presidents of three small businesses located in Missouri and Virginia.

Elizabeth Milito, senior executive counsel in NFIB’s Small Business Legal Center, told the committee that her organization’s small business members typically employ 10 employees and have gross revenues of only about $500,000 per year.

NFIB members usually do not have in-house labor relations representatives, Milito said. She told the committee that small companies are “troubled, confused, and scared” about regulatory actions by NLRB and the Labor Department that they perceive as a “tidal wave of new rules.”

Mike Mittler, president of a Missouri metalworking and fabricating firm, told the panel that he believes federal agencies with workplace law enforcement responsibilities have increasingly adopted a “gotcha attitude” that is not helpful to small business operators.

“Add the poster rule to the new quick election process the NLRB is imposing and you begin to create a more hostile work environment where employers and employees no longer feel they can openly communicate.”

Beverly A. McCauley is president of a Leesburg, Va., masonry company and a legislative co-chair for the Mason Contractors Association of America. Arguing that a 1937 U.S. Supreme Court decision upholding the Wagner Act, the original version of the NLRA, resulted in a U.S. “depression within a depression,” McCauley charged that “the NLRB and DOL are essentially leaving Congress and the American people out of the loop and taking employees’ ability to make informed decisions out of their hands as well.”

But Allen William West, president of a Sterling, Va., sheet metal firm, had a different perspective.

West told the committee that he learned his trade in a union apprenticeship program and now runs a business that has a collective bargaining agreement with a Sheet Metal Workers local.

The Virginia business operator told the House panel that he has had little experience with NLRB, but has reviewed recent board decisions as well as regulatory proposals of NLRB and DOL. Calling them “seemingly minor changes,” West said they would have no effect on his ability to create jobs.

“What I need for my company to survive,” West said, “is more work and that means more consumers and more buyers. These recent changes by the NLRB and the Department of Labor do not affect that in any detrimental way.”  10-05-2011. Bureau of National Affairs.

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