Legal battles over the rules aren't over. In May 2012, the U.S. District Court for the District of Columbia found the so-called ambush or quickie election rule invalid because the board lacked a quorum when it issued the rule. Lotito expects that the board will reissue the rule, and that when that happens, the new rule will have more teeth. Employers say the rule, which reduces the time period for elections, doesn't give them enough time to advise employees about what they see as the pitfalls of unionizing.
Preventing the formation of unions is also a lot more difficult since the board's decision in Kindred Nursing Centers East f/k/a Specialty Healthcare and Rehabilitation Center of Mobile v. NLRB . The board adopted a new standard for determining bargaining units, making it harder for employers to prevent small segments of the workplace from unionizing, even if a majority opposes doing so. Schuman said that "small, gerrymandered units" would proliferate, which for employers would be "a nightmare from an operational standpoint."
Some companies are already seeing the effects. On three separate occasions, elections to form a unit of maintenance and operational workers failed at a Nestle Dreyer's Ice Cream Company facility in Bakersfield, California. But a fourth attempt to unionize just the maintenance employees succeeded. An NLRB regional director rejected the employer's argument for a more inclusive bargaining unit, citing Specialty Healthcare . Under the new standard, employers have to prove there's "no rational basis" for excluding the employees from the unit.
The NLRB's newfound activism hasn't gone unnoticed. The agency has garnered more scrutiny from GOP–led House committees than any other. The Committee on Oversight and Government Reform's Darrell Issa (R-California) publicly battled acting GC Lafe Solomon over his decision to file an unfair labor practices complaint against the Boeing Company. In the view of several panelists, the current NLRB is the most activist of any labor board in decades. But the one thing the board can't do, says Lotito, is demand that workers organize. "They can only change the ground rules," he says. "And this NLRB is doing a very good job of that."
The Board won't be the only agency whose actions will keep employers up at night during the president's second term. The EEOC has also been attracting attention for aggressive enforcement, and companies can expect to see more of the same. Based on its draft 2012-1016 Strategic Enforcement Plan (SEP), released last fall, the agency will continue to focus on investigations and litigation of issues affecting 20 or more employees. Settlement costs quadrupled in those types of cases between fiscal years 2011 and 2012.
Given the sputtering economy, experts also expect to see the agency continue to home in on discriminatory hiring practices. Last year the EEOC issued guidance on employer use of criminal background checks when considering job applicants. Lotito expects additional theories of hiring discrimination are on the horizon, including employer bans on hiring the long-term unemployed.
Just as the employer community was in a holding pattern ahead of the election, agencies to some degree held off on issuing rules and regulations during that period as well.
But now that Obama has been sworn in for a second term, employers expect that those agencies will be making up for lost time. Lotito, citing historical trends, says Republicans could pick up seats in the midterm elections, and says that the Obama administration is likely to be most active in the two years between now and November 2014. "There's a moment in time," he says, "and that moment is now."
This article originally appeared in Corporate Counsel under the headline “Laboring for the Advantage.”
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