7 Updates on NLRB and OFCCP Proposed Rules and Posters

August 14th, 2012 by

Make sure your company is complying with recent changes in employment regulations and up to date on the newest proposals from the National Labor Relations Board (NLRB) and the Office of Federal Contract Compliance Programs (OFCCP). There are several rules “in limbo” right now due to delays or court challenges. Review the seven updates below to avoid costly fines:

1. The NLRB Poster Rule

The controversial NLRB poster highlighting the right to strike, pass out literature and join a union is on hold due to litigation. The final briefs were just filed with the federal court in Washington, DC. Oral arguments are set for September 11 in the case. No one can say when there will be an answer. In the meantime, the poster is not required. [Note: Federal contractors fall under older, different rules.]

2. The Micro-Unit Issue

The NLRB ruled in favor of the International Association of Machinists in the Nestle Dreyer Ice Cream case, allowing a “micro-unit,” or historically-small unit, to proceed to election. The union won the vote and the company has appealed. CAI is supporting the amicus brief by the National Association of Manufacturers (NAM) to prevent these “micro-units” from being carved out of facility-wide voting units. [Note: The IAM lost three prior elections in the broader, traditional voting unit.]

3. The Ambush Election Rules

The NLRB issued rules in December 2011 changing key provisions of their election procedures. The most controversial changes shorten the time between an election petition and voting day. Court challenges were filed on two theories: (1) the Board has no authority to do this by rulemaking and (2) there was no quorum during the Board vote on the rules. The district court ruled on May 15 that there was no quorum (since only two Board members voted) and the Board agreed to “temporarily” suspend these rules. On July 29, the Board asked the court to reconsider its order because a third Board member was arguably “present” for the vote. No court has yet ruled on the Board’s authority to issue the rule in the first place. About 150 election petitions were processed under the new rules before they were suspended.

4. The USDOL Persuader Rules

The US Department of Labor (USDOL) issued proposed rules to broaden the definition of a “persuader” in union election campaigns. In summary, the revisions could require disclosure of the costs and sources of any activity that could affect an employee’s vote, such as management training to help supervisors do a better job. There is no recent activity on this and it is unlikely we will see a final rule before the elections. The American Bar Association is now officially opposed to the rules.

5. Congressional Attempts to Override Recent Rulings

There is activity in the US House of Representatives to legislatively override the NLRB ambush election rules, the USDOL persuader rules and the micro-units case. The bill has made it through “markup” and into the assigned Committee. It is hard to see how passage by the House would have any impact given the vote count in the Senate and the need for Presidential approval.

6. OFCCP Disability Rulemaking

The OFCCP (part of USDOL) issued a Notice of Proposed Rulemaking December 9, 2011 seeking comments on a possible rule to set a seven percent national “utilization goal” for hiring of disabled employees. No action has yet been taken to put the rule in place. The NAM and its allies just sponsored a study by the Center for Corporate Equality assessing the costs and issue raised by the Proposed Rule. That study has been sent to OFCCP and to the Office of Management and Budget, which must assess the cost of employer implementation. We do not expect action before the November election.

7. NLRB Sues Hyatt Hotels for At-Will Statement in Handbook

The NLRB filed a complaint against Hyatt Hotels in February for maintaining a handbook statement on at-will employment. Apparently, the Board does not object to defining “at-will” employment, to reserving the right to change rules at any time, or to saying that nothing in the handbook alters at-will status. The Board does object to seeking an employee acknowledgement form and signature where the handbook stated that at-will status could not be changed by any manager other than the President or COO. The Board viewed this as waiving the right to seek a union to bargain away those terms. This is common language in handbooks to prevent an employee from alleging a mid-level manager made a promise of employment for a fixed term or for “life.” The Board said since a union contract could alter that language, the employer’s statement was “overly broad” and violated the law. Hyatt agreed to change the wording before it went to court. This is just the latest in a string of questionable interpretations of handbook language by the NLRB. As a result, it has become difficult to predict what part of a typical employee handbook will be challenged next.

If you have questions regarding any of the issues mentioned in this article, please contact a member of CAI’s Advice and Counsel team at 919‑878‑9222 or 336‑668‑7746.

Photo Source: Victor1558

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