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“Newly Minted” NLRB Majority Begins to Roll Back Decisions of the Obama Board

In two recent developments, the “new” National Labor Relations Board (“NLRB” or the “Board”), which includes two Members nominated by President Trump, has commenced the anticipated roll back of decisions and procedures rendered by the previous Administration’s NLRB. 

1. The NLRB General Counsel can no longer demand settlements with a full remedy for all violations. 

In UPMC, 365 NLRB No. 153 (December 11, 2017), the Board reversed a 2016 decision that prohibited settlements of NLRB complaints over the objection of the NLRB General Counsel (Prosecutor) and the party filing the charge, unless the settlement provided complete remedies for all violations alleged in the Complaint. The 2016 decision, United States Postal Service, 364 NLRB No. 116 (2016), had overturned decades-long NLRB precedent established in Independent Stove, 287 NLRB 740 (1987). 

In the UPMC majority’s (Chairman Philip Miscimarra, Member William Emanuel, Member Marvin Kaplan) view, requiring a settlement of all violations with a full remedy for the employees (and union) “imposed an unacceptable constraint on the Board itself which retained the right under prior law to review the reasonableness of any … settlement terms” offered by Respondents (employers and unions). According to the UPMC majority, the 2016 USPS decision unduly restricted the settlement of NLRB cases and ignored the risks inherent in NLRB litigation. The UPMC decision now allows a Respondent, with approval of the Administrative Law Judge, to settle a case without providing full and complete relief, so long as the resolution is “reasonable.” This approach should facilitate more settlements, and reduce the costs and uncertainty inherent in litigation (for employers and the NLRB). 

The dissent strongly disagreed with what it called “an eleventh hour” decision during Republican Chairman Miscimarra’s last week as a Board member. However, Chairman Miscimarra will soon likely be replaced by another Republican. 

2. The NLRB seeks comments on quickie elections – is more change likely? 

The day after the UPMC decision, the NLRB published a Request for Information (“RFI”) in the Federal Register seeking prompt public comments about the controversial 2014 Election Rule, commonly referred to as the “quickie election” rule. 

Specifically, the RFI seeks public input from December 13, 2017 until February 12, 2018 regarding the following three questions:

  1. Should the 2014 Election Rule be retained without change? 
  2. Should the 2014 Election Rule be retained with modifications? If so, what should be modified? 
  3. Should the 2014 Election Rule be rescinded? 

The “quickie election” rule, effective since April 2015, impacted NLRB elections in three main ways:

  • It significantly shortened the time period between the date a petition for election is filed and the date of the election. As a result, elections frequently took place approximately three weeks after the petition was filed. This period shortened employers’ time to respond to the union’s campaign efforts from approximately 6 weeks to 23 days. 
  • It considerably restricted the scope of any pre-election challenges that might result in litigation, such as individual voter eligibility issues, unless the question relating to eligibility affected twenty percent (20%) of the proposed unit. Eligibility issues, including determining who is a supervisor and thus is precluded from voting, were generally delayed until after the elections if the union won. 
  • It forced employers to disclose a substantial amount of private employee information to the unions, including providing unions with employee contact information. In particular, the employer is required to disclose, for the first time, employee personal email addresses and phone numbers, including all cell phone numbers. Previously, only mailing addresses needed to be disclosed. 

While the “quickie election” rule has not substantially increased union election win percentage, opponents of the rule have objected to the limited time it provides employers to communicate with employees regarding the election, the deferral of election eligibility issues until after the election, as well as the procedural challenges. 

Takeaways

Moving forward, interested parties should monitor the new Board’s actions. The recent developments indicate the new Board could likely overturn some of the decisions rendered and procedures proffered by President Obama’s NLRB. 

© Polsinelli PC, Polsinelli LLP in California

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About this Author

Terry Kilroy, Collective Bargaining Lawyer, NLRB Labor Attorney, Polsinelli Law firm
Shareholder

Terry Kilroy has spent his entire legal career as a labor and employment lawyer for management. He has a broad range of experience from collective bargaining and NLRB elections to trials of discrimination cases.

Terry has also worked on behalf of clients doing business in numerous industry sectors, including health care, manufacturing, transportation and warehousing, insurance, construction, mining, entertainment, and financial services.

Terry's passion is to serve as an advocate for his clients and to provide legal...

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Henry Thomas, Employment Litigation, Benefits, Polsinelli Law Firm, Kansas City
Associate

As an associate in the firm’s Labor and Employment practice, Henry Thomas recognizes that employers face an ever-changing regulatory environment, which, if not addressed properly, has the potential to lead to legal entanglements that can impact productivity and profitability. Henry works with Polsinelli’s national team of labor and employment attorneys to provide counsel, and when needed, aggressive defense. 

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