NLRB Adopts Expedited Election Rules

The NLRB announced today that it has issued a final rule for expedited elections in union representation cases. The final rule will appear in the December 22, 2011 edition of the Federal Register and is set to go into effect on April 30, 2012. The Board's press release regarding the new rule is available here. A copy of the final rule that will appear in the Federal Register is available here.

The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace have already filed a lawsuit challenging the rule.

We will provide more information about the Board's final rule and its impact on employers following a thorough review.

Law To Encourage Hiring Veterans Signed by President

On November 21, 2011 President Obama signed into law the Vow to Hire Heroes Act of 2011, which is a law designed to encourage employers to hire military veterans. Generally, the focus of the law is to provide tax credit to any business that hires a veteran who has been unemployed for at least four weeks. The key provisions of the Act for employers include:

· Creates a new tax credit called the "Returning Heroes and Wounded Warrior Credit" to incentivize employers to hire unemployed veterans. The Vow Act provides a credit of 40% of the first $6,000 in wages (up to $2,400) for employers that hire veterans unemployed for 4 weeks or more and credit of up to 40% of the first $14,000 of wages (up to $5,600) for veterans who have been unemployed for 6 months or more.

· Creates a two-year program through the DOL for credentialing and licensing of veterans for specific civilian jobs.

· Requires the federal government to enter into agreements with employers and other organizations to provide job training and develop apprenticeship programs to provide veterans with the education, training, and services necessary to transition to civilian employment.

· Doubles the existing Wounded Warriors Opportunity Tax Credit, increasing the value of the tax credit from $4,800 to $9,600 for veterans who have been unemployed for 6 months and have a service-connected disability.

The Department of Veteran Affairs and the Department of Labor are working together to implement this program by July 1, 2012.  More information is available from the Department of Veterans’ Affairs here.

NLRB Issues Operational Memo Related to Required Notice

The National Labor Relations Board recently issued an Operational Memo dealing with the Notice of Rights Poster that employers are required to post by January 31, 2012.

The Operational Memo (OM 12-14, available on the Board's website here) first discusses the Board's outreach efforts to inform employers of the notice posting requirement.  The OM begins by noting that on October 5, 2011, the Board "postponed the effective date of its Notice Posting rule until January 31, 2012, to allow for “education and outreach” to employers “who operate small and medium sized businesses.”  The OM then goes on to outline the steps each Regional Office should take to achieve that goal, including letters to business groups, chambers of commerce, trade associations, and regional journals and publications, among others.  The OM also directs the Regional Offices to issue press releases to local journals and business publications and answer questions about the notice posting rule and its applicability to a particular business or organization.

An attachment to the Operational Memo addresses which employers are required to post the Notice of Rights Poster.  Under the Board's new rule, all employers subject to the Board's jurisdiction (except the Post Office) are required to display the poster.  Specifically, the OM states "The new requirement to post a Notice of Employee Rights under the National Labor Relations Act applies to all employers under the Board’s jurisdiction, except for the U.S. Postal Service."  The OM then discusses the coverage standards for employers in particular industries.  As the Board notes, however, very few employers are excluded.  The OM states: "As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws."  In other words, most all employers are required to post the required notice.

Employers should be prepared to post the required Notice of Rights by January 31, 2012.  Under the Board's new rule, failure to post the required notice is an unfair labor practice.  Additionally, the rule provides that the typical 6-month statute of limitations for filing unfair labor practice charges is tolled for as long as the required notice is not posted, even for unfair labor practices that are unrelated to the notice.  Additionally, the rule states that the Board may consider the failure to post the notice as evidence of anti-union animus, an element that the Board must establish to prove certain unfair labor practices, such as discriminatory discharge.

NLRB Approves Resolution For Expedited Elections on 2-1 Vote

As anticipated, the NLRB voted along party lines (2-1) to approve a Resolution to amend certain election procedures and expedite union representation elections. Chairman Mark Pearce and member Craig Becker voted in favor of the Resolution, while Brian Hayes, the NLRB's only Republican member, voted against it.  The changes in the Resolution are drawn from a comprehensive overhaul of the election process proposed by the NLRB earlier this summer.  The text of the Chairman’s resolution is here, and the Chairman's explanation of the amendments can be found here.  This vote does not implement "quickie" elections, but it clears the way for the Board to develop and publish the final rule for an expedited election process at a later date.

Member Hayes did not resign from the Board to prevent the vote on the Resolution.  During prepared remarks during the meeting, Member Hayes said that his resignation would damage the Board's reputation of the in the same manner that the majority's decision to move toward expedited elections has damaged the Board's reputation as an objective and unbiased government agency.

The changes to election procedures proposed in the Resolution are not employer-friendly and are designed to assist unions in organizing employees.  But the changes in the Resolution are far less drastic than the rule proposed by the Board earlier this year.

We will continue to monitor the expedited election rule as it winds its way through the administrative process at the Board.

Boeing and IAM Reach Agreement That May End NLRB Action

On November 30, 2011, the Boeing Company and the International Association of Machinists (the union representing many of Boeing's employees in Washington state) reached an agreement that may resolve the NLRB's complaint against the Company.  The details of the agreement have not been reported, but generally, the agreement is part of an extension to the collective bargaining agreement covering the Washington state employees.

This agreement is a major development because of the political attention the Boeing case has brought to the Board.  Several bills were introduced in Congress in reaction to the Board's Complaint against Boeing.  Among them was a bill limiting the Board's remedial authority, which would have applied to all cases before the Board, not just the Boeing case.  It remains to be seen whether those bills will move forward without the political momentum generated by the Boeing case.