Change at the NLRB

The results of the upcoming presidential election could offer striking changes at the National Labor Relations Board, including reversals of some recent employer-friendly rulings and more favorable attention to union complaints.

Monday, September 1, 2008
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This year's election will bring about many changes. One government entity that will be affected by the upcoming change in administration is the National Labor Relations Board, the agency responsible for guiding the nation's labor relations policy by interpreting the National Labor Relations Act. 

While we can expect a marked shift in NLRB ideology if Sen. Barack Obama, D-Ill., is elected to the White House, it is difficult to predict the change under the leadership of Sen. John McCain, R-Ariz. 

But, the first change we will see at the NLRB -- regardless of which candidate is elected in November -- is a full complement of five members.

The NLRB has been operating with only two of its five seats filled since the end of 2007. The two current members are Chairman Peter Carey Schaumberg, a Republican appointed by President George W. Bush, and member Wilma B. Liebman, a Democrat first appointed by President Bill Clinton and then reappointed by Bush.

Each of their terms will expire within the next four years. That means our next president will appoint, subject to Senate confirmation, three board members to fill current vacancies and two more down the road. Each appointment will be for a five-year term. 

Traditionally, the political party of the current president has a three-person board majority. If Obama is elected, for example, we can expect to see two new Democratic and one new Republican appointees in the short-term. So, regardless of who either candidate would appoint, the victor's political party will have a three-to-two board majority. 


Perhaps more significant than who the new president appoints to the board is who he will choose to serve as general counsel when the current GC's term expires in August 2010. 

The GC has the sole authority to reverse any decision from regional NLRB offices dismissing unfair labor practice (ULP) charges. The GC also has the ultimate say in whether or not to prosecute ULP charges; only if the GC files a complaint will the NLRB rule on whether a certain practice constitutes a ULP. 

This is significant because if the GC decides not to prosecute, there is no decision for an aggrieved party to appeal. With an Obama-appointed GC, we will likely see a high level of prosecutorial activity against employers and, combined with a more union-friendly board, more decisions finding employer's actions to be ULPs. 


The general counsel also has authority to seek board authorization for pursuing temporary injunctive relief in federal court under section 10(j) of the NLRA. Because it often takes a considerable time for the board to rule on a complaint, 10(j) injunctions are used when an alleged ULP could be so harmful that the damage incurred while the board considers the case is irreversible. 

Such injunctions can be used both to freeze union activity, such as secondary boycotts and recognitional picketing, as well as employer misconduct. An Obama-appointed pro-union GC will be more likely to seek 10(j) injunctions against employers than a GC appointed by McCain. 


One of the most profound ways the next board can shape U.S. labor policy is in its interpretation of legislation like the Employee Free Choice Act. EFCA, which was given the OK in the House of Representatives during its 2007 session but stopped short by an expected filibuster in the Senate, essentially would move the country from the time-honored tradition of secret-ballot elections to a card-check recognition system. 

Obama has promised to put an EFCA bill front and center on the Congressional agenda if he is elected president. If passed, the legislation would prohibit employers from requesting a secret-ballot election when a majority of employees in a bargaining unit signs union-authorization cards. 

The proposed law would also impose mandatory mediation and arbitration in first-contract negotiations and stiffen penalties on employers for labor-law violations during organizing campaigns and first -ontract efforts. 


Canada has a card-recognition system like that proposed in EFCA. The questions labor boards in Canada had to answer illustrate some of the issues EFCA will require the new NLRB to address including: What is the date for determining when the card-signing count is official? What is the process for verifying the validity of authorization cards? How does an employee revoke a card he or she has already signed? What happens when an employer argues certain cards are fraudulent? What "evidence" of union commitment will the board seek when it investigates potential fraud? 

The board's resolution of these procedural issues would significantly impact current U.S. labor law. 


The viability of several pro-employer decisions issued the past few years also will rest in the hands of the new board and general counsel. For example, the NLRB's 2006 decisions in the Kentucky River trilogy of cases made it easier to classify certain employees as supervisors exempt from federal labor law protection. 

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Obama has already co-sponsored legislation which would overturn the board's decisions in those cases. Similarly, he has promised he will "work to ban the permanent replacement of striking workers," which the Bush-appointed board also made easier in a three-to-two decision.


Other decisions that may be at risk under an Obama-appointed board include Register-Guard, Dana Corp. and Epilepsy Foundation. 

In Register-Guard, a three-member board majority broke with precedent, ruling that employers could legally prohibit employees from using company e-mail systems for personal and other non-job-related reasons, including union solicitations. 

The Dana Corp. decision altered the "recognition bar" doctrine by creating a window of opportunity for employees to file decertification petitions. Under the "recognition bar" doctrine, employers were prohibited from filing petitions for decertification or rival union representation for a reasonable period of time.

In the 2004 Epilepsy Foundation decision, a three-person board majority said nonunion employees do not have the right to have a representative present during an interview that might reasonably lead to disciplinary action; four years earlier, the Clinton-appointed board said they did. 


Employers should be prepared for an Obama-appointed board -- and an active GC looking to prosecute alleged employer ULPs -- to limit or reverse recent employer-friendly NLRB decisions. 

Under McCain's leadership we are less likely to see any of these decisions limited or overturned. We also can expect an Obama-appointed board to issue decisions more favorable to unions if called upon to resolve procedural issues under EFCA legislation. 

Though change in national labor policy will be greater under Obama's leadership, enactment of EFCA could have an enormous effect on labor relations in the United States even if McCain becomes our next president. 




Michael J. Lotito is a partner in the San Francisco office of Jackson Lewis, a firm specializing in employment, labor, immigration and benefits law. He is regularly interviewed by the national news media regarding workplace and labor law issues and events, and has appeared on PBS's NewsHour with Jim Lehrer, FOX News, Cavuto on FOX Business Network and is frequently heard on National Public Radio.

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