On February 4, 2013, the National Labor Relations Board ("NLRB") announced it would reintroduce procedures designed to speed up the union certification processes. The proposed amendments are similar to those first proposed in June 2011, referred to by some as the "ambush election rules". The June 2011 rules were successfully challenged in District Court for having been adopted without a validly constituted quorum and invalidated. The Board's appeal of that ruling was dismissed, pursuant to a joint stipulation, on December 9, 2013.
The United States Court of Appeals for the D.C. Circuit ruled Friday, January 25, 2013, President Barack Obama's National Labor Relations Board (NLRB) appointments were unconstitutional when he bypassed Senate confirmation to fill vacancies, also known as recess appointments, as the Senate was not in recess.
Acting General Counsel of the National Labor Relations Board (NLRB) Lafe E. Solomon issued Memorandum GC 13-02 on January 9, 2013 modifying existing Board policy to now permit Agency settlements to include front pay. The memorandum confirmed the long standing favoritism of Agency settlements towards reinstatement; however, it acknowledged that parties and discriminatees routinely negotiate a waiver of reinstatement in return for a monetary amount.
The National Labor Relations Board (NLRB) recently released information regarding its activities during Fiscal Year 2012. The NLRB issued 341 decisions in contested cases for the year, including 277 in unfair labor practice cases and 64 in representation cases. The Board's activities also included new rules involving several controversial areas. Most notably, the Board finalized the so-called Speedy Election rule, which is currently suspended due to pending court challenges.
Recently four (4) states (Arizona, South Carolina, South Dakota and Utah) enacted secret ballot elections amendments to their state constitutions designed to protect an employee's right to vote by secret ballot for employee representation. The amendments guarantee when local, state or federal labor law permit or require elections, designations, or authorizations for employer representation, an employee's right to vote by secret ballot.
On May 31, 2012, the National Labor Relations Board (NLRB) Acting General Counsel Lafe E. Solomon issued a third report related to social media. Memorandum OM 12-59 acknowledges that employee use of social media relating to the workplace is increasing, and as a result employers have implemented new policies governing social media concerns, the report contains a proper policy and six incidents of overbroad policies.
The National Labor Relations Board's new elections procedures have been a concern for many employers and, despite going into effect on April 30, 2012, have been the subject of an ongoing legal challenge. While the D.C. District Court refused to issue an injunction prior to April 30, 2012 to prevent the new rules from going into effect, the Court indicated a decision on the current legal challenge would be rendered before any representative elections using the new procedures could be conducted.
On April 17, 2012, the District of Columbia Circuit Court of Appeals granted the National Association of Manufacturer's (NAM) emergency motion for an injunction pending appeal. NAM is appealing the district court's decision that held the National Labor Relations Board had authority to issue the notice posting requirement rule.
With the notice posting requirement set to take effect on April 30, 2012, court decisions continue to emerge regarding the legality of the posting requirement. On April 13, 2012, the United States District Court for the District of South Carolina held the National Labor Relations Board (NLRB) exceeded its authority in promulgating the notice posting requirement. The district court granted summary judgment in favor of the U.S. Chamber of Commerce and South Carolina Chamber of Commerce by finding the NLRB violated the Administrative Procedure Act by putting the posting requirement into effect. This posting requirement has and will continue to face legal challenges around the nation.