*By Patrick J. Hoban
“Three’s Company” – and necessary to issue and implement federal labor law rules – at least according to a Federal District Court judge. On Monday, May 14, 2012, the Federal District Court for the District of Columbia struck down the National Labor Relations Board’s (“NLRB” or “the Board”) new rules governing elections for employees seeking representation by a labor organization. See Chamber of Commerce of the United States of America, et al. v. National Labor Relations Board, No. 11-cv-02262 (D.D.C. May 14, 2012). Z&R posted prior alerts outlining the election rule changes: June 2011, January 2012 and April 2012. The new rules dramatically reduced the time employers had to present the case against unionization and greatly limited employers’ ability to alter the composition of the proposed bargaining unit. Despite opposition from employer-management groups and Republicans, the new election rules went into effect April 30.
At the time the election rules were approved in December 2011, the Board only had three members. The National Labor Relations Act (“NLRA”) requires a quorum of at least three board members to enact new rules. Because one Board member never responded to an email request for his vote on the final rule, while the other two members voted online, the Court held that the required three member quorum for the vote did not exist and the NLRB could not enforce the new rules. The Court, however, stated that the current Board - comprised of five members (and a 3 to 2 Democrat majority) could simply hold another vote on the rule.
Late yesterday afternoon, in response to the Court’s decision, the Board “temporarily suspended” the new election rules as of May 15, 2012. The Board stated that parties involved with the approximately 150 election petitions currently being processed under the April 30 rules have the option to continue under those rules or “re-initiate” the process under the former election rules.
Employee Handbook “At-Will” Statements “At-Risk”?
A recently issued NLRB General Counsel complaint in an unfair labor practice case suggests that the NLRB has opened a new front in its war against non-unionized employers – this time attacking employee handbook provisions confirming employees’ “at-will” employment status. On February 29, 2012, the NLRB’s Phoenix, Arizona Regional Office issued a complaint challenging several “at-will” statements contained in the employer’s employee handbook. Specifically, the complaint alleges the statements “I understand my employment is ‘at-will’” and “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and company executives” were overly broad and violated the NLRA. Although details as to what motivated the complaint are vague, the complaint suggests that employees may interpret the quoted language as prohibiting union organization. The case was heard by an administrative law judge on May 3, 2012, and that judge should issue a decision in several months.
The NLRB’s apparent attack on “at-will” handbook provisions is disturbing and, if found meritorious, would render virtually every employee handbook in the country in violation of the NLRA overnight. However, given the radical nature of the NLRB’s latest attack, Z&R does not recommend that employers revise their employee handbooks at this time. Z&R will continue to watch the progress of this case and provide further updates.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of labor relations. For more information about the NLRB’s election amendments, NLRB’s posting requirement, or labor & employment law, please contact Pat at pjh@zrlaw.com or 216.696.4441.
