2012 Predictions: Labor Relations Insight by Phillip Wilson

Steven Wright is one of my favorite comics. He’s probably an acquired taste – after all, he does what they call “surreal standup.” But check him out on Youtube if you’ve never heard of him (if you do, let me know what you think). One of Wright’s jokes goes like this: “You ever get that feeling like you’re leaning back on a chair and you almost fall backwards but then you catch yourself at the last second? I feel like that all the time.” As I look ahead to 2012 I’m beginning to see what he means. 2011 ended with a flurry of activity from the NLRB, including issuing the final “ambush election” rule. And this year has already started out with a bang. The NLRB lost its quorum on January 3rd, only to get it back on January 4th with Obama’s “recess without a recess” appointments. These appointments are likely to be challenged soon and we could easily end up where we did after the Bush administration, with a year’s worth of decisions tossed out the window. By the way, if you are interested in the minutiae of the recess appointment arguments (and who isn’t…) check out this article. As eventful as 2011 was, it looks like 2012 will be even more exciting. Here are my predictions:

1. The NLRB rulemaking on notice posting will be delayed from going into effect at least until the summer. The Board has been forced to postpone implementation of the rule twice, presumably to avoid an injunction against the rule while their right to issue it is litigated. At this point there is no reason to believe that the judge will see any reason to give ground, so it will probably stay on the shelf (or get enjoined) at least until there is a preliminary ruling on the rule itself, which will take several months.
2. The NLRB ambush election rulemaking will suffer a similar fate, probably also being delayed until summer or perhaps fall of 2012. I believe the NLRB has a much better argument about its right to issue this rule than the notice posting rule, but the way they jammed it through is definitely going to get a close look. In fact, if the Board were to win a preliminary ruling on the validity of the recess appointments (see prediction number 3) they might even decide to withdraw the rule and then issue it under the signatures of the now full quorum of the Board.
3. The recess appointments to the Board will be challenged, resulting in substantial uncertainty around cases (and rules, see number 4) decided in 2012. The Obama recess appointments are unprecedented and, whether ultimately approved or not, will break new legal ground. That issue will probably end up appealed all the way to the Supreme Court, meaning it won’t be decided quickly. For a while you will likely see parties challenge whether the Board even has jurisdiction during this year. If courts start to rule that the current Board is sitting unlawfully the Board could effectively be locked down for 2012. I doubt that will happen, but there will certainly be a flurry of legal activity while everyone tries to sort out the “recess without a recess” debacle.
4. The new NLRB will pick up where the old one left off. Look for additional rulemaking on election procedures that were set aside in the mad dash to get the ambush rule out in 2011. Look for rulemaking on allowing the use of electronic showing of interest, electronic voting, requiring statements of position, turning over Excelsior lists – including phone numbers and email addresses – within 2 days after a direction of election, and more. Unfortunately it looks like the climate in Washington is so poisoned that the new NLRB will probably be even more aggressive than the last one. While their ultimate authority will be under a cloud of uncertainty, it is hard to imagine they will see the appointment of two former union attorneys as anything but a signal from the White House of “full steam ahead.”
5. The Department of Labor “persuader” rulemaking will issue sometime late spring and be far-reaching, requiring reporting of many common HR activities like training and employee surveys. The rulemaking activities of both the NLRB and DOL must be seen in the context of the Presidential election campaign this year. I think Obama has decided that there is no hope that he will be able to campaign as someone who can govern in a bipartisan way. This year, as evidenced by the recess appointments, the administration is likely to take every shot they can at the employer community, each time throwing red meat to unions who they will desperately need to win re-election. The louder the employer community screams, the better Obama looks to this key constituency. Expect to hear a lot more screaming.
6. Union organizing activity will start out at a solid clip and tail off in the second half of the year (and almost disappear around election time). Obama will not generate the kind of excitement he did in 2008. Republicans smell blood and are going to campaign like crazy no matter who they nominate. If Obama is going to win (and don’t count him out by a long shot) he will need every union boot on the ground he can get. The organizers are among the first to go on the campaign trail. So unions will try to make all the hay they can early this year and then turn their attention completely to the election.
7. We will have at least one new Right to Work state in the rust belt, possibly two. Do you feel that chill in the air? I hear the Devil just ordered one of those puffy coats.
8. And finally, my prediction for President… Come on now, just because I feel like I’m falling out of a chair all the time doesn’t mean I’m that crazy. We’ll save that prediction for a newsletter later this fall.

Happy New Year to everyone. Hang on tight, this year is going to be a heck of a ride.