According to the Board, it has received more than 65,000 written comments on the proposed rule. The agency also conducted a 2-day hearing in July to gather public input. Taking these comments into consideration, and “in light of the possibility that the Board will lose a quorum at the end of the current congressional session,” Board Chairman Mark Pearce “will propose issuing a final rule limited to several provisions designed to reduce unnecessary litigation.” Given the current makeup of the Board, approval of the Chairman’s proposal is a foregone conclusion, with member Brian Hayes (R) sure to object. Following the vote, the Board will “proceed to draft a final rule limited to those proposals, and defer the remainder of the proposed rule for further consideration.”

would contravene long-standing Board tradition and the Board’s own internal operating rules. These rules and traditions have been established to protect the legitimacy of the Board. They cannot, in my view, simply be cast aside in pursuit of a singular policy agenda without doing irreparable harm to the Board’s legitimacy.

In addition, Hayes claims that Pearce and Becker “have made it unequivocally clear that they intend to publish a final rule before the expiration of Member Becker’s appointment without regard to Board tradition or rule,” and are already drafting a final rule with responses to comments filed without his input.

Moreover, Hayes asserted that his colleagues presented him with a take-it-or-leave-it “compromise proposal” on November 15, with a deadline of November 18 to accept. Hayes claims that such a proposal would have bound him:

to an unprecedented “emergency” revision of the ordinary internal rules for processing all pending cases from now until the end of Member Becker’s term. In effect, the “emergency” procedures would deprive me of any meaningful opportunity to consider the majority position, much less prepare a response, in any number of cases. This process, or, more accurately, lack of process, is so diametrically at odds with traditional decisional processes of the Board that it quite frankly defies description.

Hayes also stated that he suspects the final rule will resemble the proposed rule.

The Board vote will be conducted at the NLRB’s headquarters in Washington DC and will be open to the public, although members of the public will not be entitled to participate in the discussion. Requests to attend should be sent to publicmeeting@nlrb.gov with the following text in the subject line: REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08. The meeting will also be available via webcast from the Board’s website.

Photo credit: ericsphotography

According to a press release announcing the extension:

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. No other changes in the rule, or in the form or content of the notice, will be made.

The rule itself is facing both legislative and legal challenges. Notably, the National Association of Manufacturers (NAM) has filed a lawsuit in the U.S. District Court for the District of Columbia to nullify the rule. A hearing on motions for summary judgment is set for December 19, 2011. The court is expected to issue a decision on these motions before the rule’s new effective date.

For more information on the NLRB’s notice posting requirement, see Littler’s ASAP: NLRB Issues Final Rule Requiring Employers to Post a Notice Informing Employees of Their Rights Under the NLRA by Gavin Appleby and Tracy Stott Pyles. In addition, Littler invites you to a complimentary webinar on the new rule and its workplace implications.

Photo credit: sumak77

The first meeting is scheduled to take place from 9 a.m. to 4 p.m. on Monday, July 18, 2011 in the Margaret A. Browning Hearing Room (Room 11000), National Labor Relations Board, 1099 14th Street, NW, Washington, DC 20570. A second meeting might be scheduled the following day if necessary. Those interested in attending or speaking at the meeting must submit a written request by 4 p.m. on Friday, July 1, 2011. Requests may be sent to Mary Meyers, Administrative Assistant to the Chairman, National Labor Relations Board, 1099 14th Street, NW, Suite 11100, Washington, DC 20570, or submitted electronically to: publicmeeting@nlrb.gov. All emails should contain the following in the subject line: “REQUEST TO ATTEND PUBLIC MEETING REGARDING RIN 3142-AA08.” All requests must include the following information: (1) attendee’s full name, (2) organizational affiliation (if any), and (3), if they are appearing in a representative capacity, the names of any individuals or organizations on whose behalf they are appearing. Attendees are reminded to bring a photo ID. Individuals interested in speaking at the meeting must also submit a brief outline of their presentation.

Littler Mendelson attorneys plan to be in attendance and will provide an update on the issues discussed.

Photo credit: Rapid Eye Media

One witness at the hearing criticized (pdf) the role that organized labor has been playing in recent years, claiming that the bargaining model of the National Labor Relations Act, where each side’s leverage stems from economic damage it may inflict on the other, “places unions and companies in a relay race, and all too often in the United States, the union’s incentive is to use the baton to injure or maim the employer, instead of running the race against international competitors.”

Former NLRB General Counsel Arthur F. Rosenfeld discussed (pdf) recent GC initiatives that he believes represent a negative change from current labor policy. Rosenfeld explained that the GC’s influence “is exercised subtly, e.g., through enhanced enforcement of a certain class of cases, or through instructions to the Regional Directors, or in the way a case is presented, or even in performance evaluations of General Counsel Office employees.” In his testimony, Rosenfeld criticized the following GC memorandums:

• GC 11-04, which states that all settlement agreements—including both informal and compliance settlements—should include certain default language. Rosenfeld testified that this initiative has the potential to adversely impact the current high settlement rate.
• GC 10-07, issued in 2010, which is designed to streamline and expedite the process of seeking preliminary injunctions from federal courts in cases involving employee discharges during union organizing campaigns. As Rosenfeld points out, the directive requires the GC “to personally review all pending organizing discharge cases found to have merit to decide whether 10(j) authorization should be sought from the Board. . . . Devoting scarce resources to a problem that may not be critical means that resources will be shifted from other issues, perhaps such as illegal secondary boycotts.”
• GC 11-01 directs all NLRB regions to systematically seek additional remedies against employers charged with committing “serious” unfair labor practices during the initial phase of union organizing. According to Rosenfeld, both GC 11-01 and GC 10-07 are directed only at employer misconduct.
• GC 11-05 changes the Board’s arbitration deferral policy. As Rosenfeld explains, the “Acting General Counsel seeks to revise the ground rules in all deferral cases, including pre-arbitral deferral, where an employer is alleged to have violated a collective bargaining agreement provision, and to have committed an unfair labor practice. If adopted, I fear that there will be fewer deferrals, greater expenditure of agency resources, and diminution in achievement of the Congressional goal of promoting industrial peace and stability.”

In testimony offered to support recent Board actions, Law Professor Cynthia Estlund claimed (pdf) that the Board’s “recent proposals and actions are modest by any measure, and well within both the boundaries of the Board's statutory authority and the traditional scope within which past Boards and General Counsels have exercised that authority.”

The hearing also focused attention on the Board’s proposed rule that would require all private sector employers covered by the NLRA to post a notice informing employees of their NLRA rights. As noted by several witnesses, the NLRA does not contain a provision requiring such notice-posting, which has raised questions about the statutory authority of the NLRB to issue the rule. The content of the notice itself also was a source of debate among both Members of the Committee and the witnesses.

After the close of the hearing, NLRB Chairman Wilma Liebman issued the following statement:

The most significant ‘emerging trend’ at the NLRB is that the agency is coming back to life after a long period of dormancy. After more than two years without a quorum due to chronic vacancies, the Board now has four members and has been tackling many of the difficult cases that languished for years. We are actively seeking input from practitioners and from the public, by inviting briefs for important cases that are under review, and by using the process of federal rulemaking to seek comments on one potential rule change intended to inform American employees of their statutory workplace rights.

Liebman’s statement noted that while it is “unfortunate” that the Board’s actions are “often viewed through a partisan lens,” such has been the case “for decades.” She concluded by saying she looked forward to working with Congress to effectuate the agency’s mission and welcomes a “serious dialogue” about the issues.

An archived webcast of the House Subcommittee hearing can be found here.