Friday, February 26, 2010

NO EFCA, NO PROBLEM? - Preparing for the New NLRB

The unexpected loss of a filibuster-proof Senate has cast additional doubt on whether the Employee Free Choice Act or any compromise will be passed before the mid-term elections this year. Craig Becker’s nomination was held up by a filibuster. It is unclear whether President Obama would use his ability to make a recess appointment to appoint Becker to the Board for a term which would end at the end of 2011.

Employers who believe that these two setbacks to organized labor effectively end concerns about the direction of the National Labor Relations Board are wrong. By its very nature, the NLRB, through its five board members, is a political animal whose majority is determined by the political party which controls the White House. The move from a pro-employer Republican board to a pro-labor Democratic board is inevitable.

When General Counsel Meisburg’s term expires in August of 2010, President Obama will be able to select a new General Counsel. The General Counsel’s function is to investigate and prosecute unfair labor practice charges and to seek injunctions where appropriate to protect the rights of employees under the Act. The new General Counsel should expect to have a more union oriented approach.

One of the unique aspects of the NLRB is that the concept of stare decis does not apply to its decisions because the Board is not considered to be an Article III court. The Bush NLRB was heavily criticized for a series of decisions which were issued in September of 2007 and which were referred to by organized labor as the “September massacre.” These decisions reversed a number of prior decisions. It is anticipated that the new Obama Board will undo virtually all of these decisions when presented the opportunity. The U.S. Chamber of Commerce has a paper on its website discussing the proposed changes. The National Labor Relations Board in the Obama Administration: What Changes to Expect (September 2009). A rule of thumb would be to review the significant dissensions of the Bush Board with particular emphasis on the dissents of Chairman Lieberman to find out how the Obama Board will interpret similar cases.

One of the less dramatic but equally significant aspects of the new Board will be its review of appeals from administrative law judge decisions. These appeals will be decided by a three-member panel with the odds heavily in favor of two of the members being Democratic. As a result, what previously was viewed in an election campaign as being free speech by the employer may be seen as coercive and unfair labor practice. An employer’s legitimate hard bargaining in contract negotiations may be viewed as an unlawful refusal to bargain. The recognition of an employer’s ability to control methods of communication using its equipment and technology may be balanced in favor of increased employee access, especially in the area of the use of email at work. Policies in an employer’s handbook implemented to further legitimate concerns addressing issues of workplace conduct may be viewed as coercive and improper attempts to chill employee rights.

The bottom line for employers today is that reliance upon Bush Board opinions to determine whether proposed actions or changes will be found to be in violation of the National Unfair Relations Act is unwise. The dissents of Chairman Lieberman in those decisions reflect the direction of the new Board. Failure to recognize the shift in the political focus of the Board even in the absence of EFCA and nomination of Craig Becker ignores reality of the new NLRB.

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