[author: Mark Theodore]
What a difference a year makes. Last year, we saw a blizzard of change coming from the NLRB. One could forecast what was going to happen due to the proactive nature of the agency's public expression of its intentions, as well as its solicitation of viewpoints. It seemed every month brought some new, big change leading to a constant state of agitation as employers evaluated potential impact of these developments.
These days it seems like a calm has come over the NLRB. Or has it? There are so few cases being decided, and so few major actions being taken that things have dropped off the radar. Why is this? First, this Board seems to have continued the work of its predecessors but has not articulated a new agenda of what they'd like to see accomplished (or at least they haven't publicized it if they do have an agenda). This Board seems content, for the moment anyway, to decide what it has before it instead of going out there looking for new things to do.
Second, the continuation of the predecessor Board's agenda has run its course for the time being. While the agency awaits decisions on the quickie election rules and employer rights poster requirement, there is not much else left over.
Third, the fact the presidential election is just around the corner no doubt plays an important part in the low key nature of the agency. One cannot blame Board members and other agency officials if they do not want to do something that could become an issue in the campaign, especially with slightly less than two months to go.
These reasons might explain the relative dearth of activity during this timeframe from years past. September is usually the busiest month of the agency when it comes to the issuance of decisions. September is the final month of the NLRB's fiscal year and a flurry of activity is usually seen as the agency tries to ensure that its year-end statistics look as good as possible.
Except for this year. The last few weeks have seen very little activity. This past week the only two cases decided (i.e., published decisions) by the Board are interesting only in that they confirm patterns of activity that we have have observed over the last several months.
In Quantum Hotels, LLC, 358 NLRB No. 122 (September 7, 2012).pdf the Board issued a default decision based on its fancy new settlement agreement language. This appears to be only the second time that such language has been used to go immediately from settlement agreement to finding of unfair labor practice charge. Nothing new, of course, but employers should be mindful of the type of case they are settling before agreeing to the language. If there is any potential for dispute over future obligations, it is probably best to have a discussion about the language with the agency before entering into it.
In Costco Wholesale Corp. 358 NLRB No. 106 (September 7, 2012).pdf the Board found some provisions of the employer's handbook to be violative of the Act. Again, no surprise at the finding. What is surprising is that apparently there were several other allegations raised in the charge and at the hearing about alleged unfair labor practices committed during an organizing drive that were all dismissed for lacking merit. So, the employer did everything lawfully, except have a handbook the agency might interpret as unlawful, even though the violation had zero effect on the overall outcome of the organizing or on management actions alleged to be unlawful. We have reported in this blog that these kind of violations are the dormant problem employers have to face with potential consequences beyond the charge itself. By the way, for those of you who have an investigation pending at the NLRB this is why the Region is asking for a copy of the handbook, even in cases where a written policy does not figure into the allegations; the Region wants to see if they can find some violation.
Finally, a review of the decisions reported on the agency website for the last few weeks shows a number of cases where default judgment was taken based on a refusal to bargain due to the inappropriateness of the bargaining unit. While it is impossible to know for sure, it seems likely the uptick is due to the micro union standard, where portions of larger, traditional bargaining unit are now possible as an appropriate unit.
We shall see what the next few weeks bring.