In recent days, the National Labor Relations Board (NLRB) has lost—at least for the time being—two battles that it considered important. In mid-April, the federal District Court for the District of Columbia struck down the severe penalties for noncompliance that the board had attached to its new notice-posting rule. And, a few days later, a federal judge in the District Court of South Carolina struck down the entire rule. Since then, the board has had another setback. We asked for an expert's point of view.

Why is NLRB faring so badly? James M. Walters, an attorney in the Atlanta office of labor and employment firm Fisher & Phillips, noted that the union landscape has changed enormously in the last 20 or 30 years. Says Walters, “The employment sector has changed dramatically since the hey-day of unions.” Manufacturing has increasingly been replaced by industries such as fast-food, where service is key. “Unions are like insurance carriers whose policies may or may not help employees,” Walters adds. “Unions are now businesses rather than representatives of employees.”

Some of the reasons the two judges blocked the notice-posting rule had to do with its language—remember that all employers, including those without unions—would have been required to post the notice. South Carolina's Judge Norton especially noted that the poster told employees, “You have the right to strike,” which he felt was extreme.

Walters also feels NLRB ran into trouble with the posting rule because it failed to follow the requirements of the Administrative Procedure Act: The Act oversees agency regulations that have the force of law and requires a comment period. The agency must take the comments seriously, and NLRB hadn't done a good job at this in the case of the posting rule.

Two rules down, but perhaps not forever. Nor did it seek and take comments seriously with another bold move—the “quickie” election rule. That was struck down by a judge in the DC Circuit, about a month after the posting rule failed. In his opinion on the elections rule, the judge based his decision on the fact that the rule was passed by only two board members, not the requisite quorum of three. His rejection of the rule on those technical grounds, without reference to the other procedural and substantive challenges to the rule, surprised many.

Walters notes that the judge said in his decision, “Nothing appears to prevent a properly constituted quorum of the Board from adopting the rule if it has the desire to do so.” One member who originally voted for it is off the board now, and we don't know where the three new ones stand.

Walters told NLRB what he thought about both proposed rules in late August 2011, on behalf of Fisher & Phillips. In a letter to the board's executive secretary, Walters noted that NLRB had stayed away from the federal rulemaking process for more than 20 years and suddenly, in just 6 months, proposed both the notice-posting rule and the quickie election rule. He quoted dissenting board member Hayes regarding the quickie election proposed rule, “In truth, the ‘problem’ which my colleagues seek to address through these rule revisions is not that the representation election process generally takes too long. It is that unions are not winning more elections.”

Hayes also said that unions won more than 67 percent of elections in 2010 and 68 percent in 2009, wondering what problem the board was trying to solve. And Walters closed his letter this way: “The typical employer already feels it has precious little time to mount a lawful, thoughtful campaign [against unionization] under the current regulatory system. To reduce that very small amount of time by two-thirds … would be tragic.”

Walters says NLRB has, for the past 5 or 10 years, gone out looking for labor law violations. As a result, he believes, most nonunionized employers are very much aware of the NLRB's reach: It has protected "the right to concerted activities" for 35 years in all workplaces, as well as enforcing the 1975 Weingarten rule that an employee has the right be accompanied by a union or nonunion representative to any disciplinary meeting—so long as the representative is not a lawyer.

Related Resource:

In this featured video, HR.BLR.com's Managing Editor, Patricia Trainor, J.D., provides details behind the recent NLRB headlines and what the implications are for employers.

Watch the video.