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The New NLRB Representation Case Rule

Labor & Employment Law Practice Group Teleforum March 27, 01:00 PMFederalist Society Teleforum Conference Call

On December 15, 2014, the National Labor Relations Board published a final rule amending its representation case procedures, which will become effective on April 14, 2015. According to the Board, the final rule retains the essentials of existing representation case procedures but removes “unnecessary barriers to the fair and expeditious resolution of representation cases.” Among other things, the rule shortens the election process to as few as 14 days from the current median time of 38 days, requires employers to give unions employees’ personal telephone numbers and email addresses, and makes post-election appeals discretionary with the Board rather than as of right.

The final rule has been challenged in lawsuits brought by employer associations in the U.S. District Courts for the District of Columbia and Western District of Texas. The complaints allege that the rule will restrict communication between employers and employees before an election, depriving employers of due process and speech rights and employees of information needed to decide intelligently how to vote.

The final rule and the legal challenges will be discussed in this Teleforum.

  • Homer L. Deakins, Jr., Chairman Emeritus, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
  • Brent Garren, Deputy General Counsel, Local 32BJ, Service Employees International Union
  • Hon. John N. Raudabaugh, former member, National Labor Relations Board, Reed Larson Professor of Labor Law, Ave Maria School of Law, National Right To Work Legal Defense Foundation

Right to Work in the Midwest - Podcast

Labor & Employment Law Practice Group Podcast
Milton L. Chappell October 30, 2014

In 2012 and 2013, Indiana and Michigan, respectively, passed Right to Work laws covering both public and private sector employees. Wisconsin (2012) passed Act 10, which created Right to Work protections for most public employees and limited many aspects of public sector bargaining.

In response to this legislation, unions and their supporters in each of these states filed numerous state and federal lawsuits, challenging these laws on a wide variety of federal and state constitutional grounds. Some of the cases have been decided and others remain pending. The Wisconsin Supreme Court recently turned down a major challenge to Act 10, the Indiana Supreme Court recently heard oral argument on one state constitutional challenge, and the Michigan Supreme Court is slated to hear oral argument soon on a challenge brought by civil service unions. In addition, employees seeking to resign their memberships or cut off dues deductions have filed numerous actions in state courts and administrative agencies to enforce the laws in the face of union policies designed to restrict resignations and dues revocations. The current status of the three states’ laws and the many court challenges will be discussed in this Teleforum.

  • Milton L. Chappell, Staff Attorney, National Right to Work Legal Defense Foundation

Unionizing Domestic Workers?: Harris v. Quinn Decided - Podcast

Labor & Employment Law Practice Group Podcast
Samuel R. Bagenstos, Andrew Grossman July 01, 2014

Supreme Court ExteriorIs Harris v. Quinn a landmark in labor law? The case asked the Court to decide whether the First Amendment bars Illinois from compelling personal homecare providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs.

Viewed narrowly, Harris is a challenge to the organization of home-care workers, asking the Court to clarify whether a state's interest in maintaining "labor peace" -- the justification for allowing government to burden workers' First Amendment rights by requiring them to associate with and support a labor union -- is sufficient in these circumstances.

But Harris also asked whether a state ever has an interest sufficiently compelling to require its own workers to speak to it through the intermediary of a labor union. It was only in 1977, in a case called Abood v. Detroit Board of Education, that the Supreme Court held that "labor peace" justifies this imposition on government employees' First Amendment rights. The Harris petitioners contend that Abood was wrongly decided and that governments never have any sufficiently compelling interest to compel their workers to support a labor union. Does the majority opinion's language on Abood signal the Court is ready to reverse it when the right case presents itself?

  • Prof. Samuel Bagenstos, University of Michigan Law School
  • Andrew M. Grossman, Associate, Baker & Hostetler LLP, Adjunct Scholar, The Cato Institute

Recent Developments in Labor and Employment Law - Event Audio/Video

First Annual Executive Branch Review Conference
Caroline Fredrickson, Tuan Samahon, Peter Schaumber, Richard Wolf June 13, 2013

Recent Developments in Labor and Employment Law - Event Audio/VideoOn June 11, 2013, the Federalist Society's Executive Branch Review Project held its First Annual Executive Branch Review Conference at the National Press Club in Washington, DC. The first breakout session featured this panel discussion on labor and employment law.

Recent Developments in Labor and Employment Law
10:10 a.m. - 11:10 a.m.
East Ballroom

  • Ms. Caroline Fredrickson, President, American Constitution Society for Law and Policy
  • Prof. Tuan Samahon, Villanova University School of Law
  • Hon. Peter Schaumber, Former Chairman and Board Member of the National Labor Relations Board
  • Moderator: Mr. Richard Wolf, Supreme Court Correspondent, USA Today

National Press Club
Washington, DC

NLRB Posting Regulations - Podcast

Labor & Employment Law Practice Group Podcast
Maurice Baskin, Walter Kamiat, Dean A. Reuter May 07, 2013

NLRB employee rightsOn August 30, 2011, with the then-one Republican member dissenting, the National Labor Relations Board promulgated a rule that would require for the first time that all private employers in the country post a notice advising employees in detail of their statutory rights to unionize and engage in union activities.  Employers who fail to post the notice would be guilty of a new, Board-created unfair labor practice, could lose the protection of the National Labor Relations Act’s six-month statute of limitations, and could have that failure be considered as evidence against them in cases involving other unfair labor practices.  The posting requirement is not yet effective, due to litigation brought against the Board challenging its authority to promulgate this rule. In a case brought by the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, and others, the United States District Court for the District of Columbia held that the Board has the authority to require all employers to post the notice.  It struck down the penalty provisions insofar as they would be blanket rules, but permitted the Board to apply them on a case-by-case basis.  However, soon thereafter, in a case brought by the U.S. Chamber of Commerce, the United States District Court for the District of South Carolina held that the Board lacked statutory authority to promulgate the notice-posting rule.  Both district court decisions have been appealed.  The D.C. Circuit enjoined enforcement of the rule pending its decision, and heard argument on September 11, 2012.  The Fourth Circuit heard oral argument on March 19, 2013 in the Board's appeal from the South Carolina district court’s decision.  Maury Baskin of Venable LLP, who argued for the D.C. plaintiffs, and SEIU Associate General Counsel Walter Kamiat discuss the issues and give their assessment of the arguments in the two courts of appeals.

Featuring:

  • Mr. Maurice Baskin, Partner, Venable LLP
  • Mr. Walter Kamiat, Associate General Counsel, Service Employees International Union
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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