Capitol Hill

Legal woes

With the 2012 elections behind us, an important question for you is: "What will a second Obama term bring in the way of new regulations governing federal labor policy?"

Facing litigation

The Obama administration likely will attempt to move forward with the aggressive regulatory agenda launched in 2011 that is designed to make it easier for workers to join unions. The administration embarked on this course after Democrats lost control of the House of Representatives to Republicans in the 2010 elections.

With Republicans continuing to hold a House majority in the new Congress, the administration's only option for moving its agenda forward is through the regulatory process. However, many of the administration's labor regulations initiated by the National Labor Relations Board (NLRB) during the past two years currently face legal challenges brought by the Coalition for a Democratic Workplace (CDW) of which NRCA is an active member.

Challenging NLRB

NRCA represents union, open-shop and dual-shop employers and supports policies that maintain an equitable balance between labor and management. NRCA supports litigation challenging some NLRB regulations because the new rules would favor unions and hurt employers.

There are three areas of litigation challenging NLRB actions that must be resolved before major initiatives can move forward. Legal decisions in these cases appear likely sometime this year but may not be resolved until 2014.

First, CDW challenged an NLRB regulation issued in 2010 that would require most employers to post a workplace notice informing employees of their rights under federal labor law. The regulation has been challenged on the basis of whether the agency has the statutory authority to impose this requirement on employers. Allowing NLRB to issue a regulation imposing new requirements on employers without clear legal authority could lead to other requirements that go beyond the intent of Congress.

In April 2012, a federal court issued an injunction blocking NLRB from enforcing the regulation until the CDW case and separate legal challenge are resolved. A court decision is expected early this year and likely will determine whether the regulation will be implemented in its current form, modified or shelved.

Another NLRB regulation CDW is challenging involves changes in union representation procedures that would reduce the time frame within which union elections are held to as few as 14 days from the filing of a petition. The average time for completing elections now is 31 days, which allows for informed dialogue between employers and employees. CDW and NRCA are concerned NLRB's regulation would erode employers' ability to have a meaningful dialogue with employees about the pros and cons of joining a union.

On May 14, 2012, a federal court invalidated the regulation after determining NLRB did not follow the procedures needed to have a quorum present when it voted to approve the initiative. NLRB appealed the ruling, and a final court decision likely will be made this year.

CDW also is pursuing litigation challenging President Obama's "recess" appointments of three NLRB members on Jan. 4, 2012. The appointments are controversial because the Constitution vests the president with the authority to make such appointments only when Congress is in recess, and the Senate was in pro-forma session on Jan. 4, 2012.

If the court rules in favor of CDW in the case, every action NLRB has taken since Jan. 4, 2012, that requires a quorum and any future action taken until this legal challenge is resolved could be invalidated. Moreover, such a ruling would leave NLRB without a quorum moving forward, paralyzing the agency from undertaking regulatory actions until new board members are appointed and confirmed by the Senate in what likely would be a lengthy, difficult process.

Working toward resolution

The outcome of this litigation significantly will affect NLRB's agenda during the next four years. NRCA will continue working as a CDW member to ensure these legal challenges have the resources to be resolved.

Duane L. Musser is NRCA's vice president of government relations.



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