What To Expect From President Obama's NLRB

April 28, 2009

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EFCA Report

MLA attorneys have been  regularly monitoring activity on EFCA and have established a blog:
EFCA Report (www.efcareport.com).  EFCA Report tracks developments, compiles resources and discusses management perspectives related to the Employee Free Choice Act.

What To Expect From President Obama's NLRB     

Even if the push to pass the Employee Free Choice Act fails to generate any legislative labor law reform this year, there will still be significant changes in the law for which employers must be prepared. President Obama   last week took the first steps toward filling the three existing vacancies on the National Labor Relations Board by announcing his nominees   -- SEIU counsel Craig Becker and New York union attorney Mark Pearce. If   confirmed , these two men will join Chairwoman Wilma Liebman as a majority bloc distinctly in favor of expanding the rights of unions and workers. This Board is certain to reverse several precedents set by the previous administration's Board.

Employers wondering what decisions might be considered high priority for such attention should look to the many Board decisions issued during September 2007. Issued in the closing weeks of then Chairman Battista's term, many of these decisions split as 3-2 votes. Each modified existing Board law, and each contained a strong dissent by the current Chairwoman. They provided fodder for   highly critical congressional hearings   to condemn what some saw as a   partisan anti-labor shift by the Board  . Chairwoman   Liebman testified   at one such hearing, and provided her insight on some of these cases.

Among the issues likely to be revisited are those addressed in the following September 2007 cases:

-   Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007)  , wherein the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative will not bar the processing of a decertification petition filed during the first 45 days after recognition.

-  Toering Electric Co., 351 NLRB No. 18 (Sept. 29, 2007)  , wherein the Board significantly altered its standards in “salting” cases.   Salting   occurs when a union organizer seeks employment at an employer solely for the purpose of organizing the other employees and obtaining recognition of the union.  This practice is lawful and previously “salts” were protected by the NLRA, but in Toering, the Board held that individuals who do not genuinely seek an employment relationship do not qualify as “employees” protected by the Act.

-   Jones Plastic & Engineering, 351 NLRB No. 11 (Sept. 27, 2007)  , wherein the Board clarified that advising strike replacement workers that they are employed “  at-will  ” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. A previous Board case, Target Rock, 324 NLRB 373 (1997), had suggested otherwise.

-   BE&K Construction Co., 351 NLRB No. 29 (Sept. 29, 2007)  , wherein the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act.  BE&K confirmed that this is the case even if the employer’s motive for bringing the suit is to retaliate against a union, and even if the suit is ultimately dismissed.

The September 2007 cases are by no means the only decisions likely to be re-assessed by Chairwoman Liebman’s Board.  Employers should also watch for action on the following:

-   Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007)  , another 3-2 decision, wherein the Board held an employer does not violate Section 8(a)(1) of the NLRA by maintaining a policy prohibiting employees from using the employer’s e-mail system for any “non-job-related solicitations.”

-   The "Kentucky River" cases  , issued in 2006, wherein the NLRB clarified the   definition of  "supervisor"   under the National Labor Relations Act.  Labor unions   accused the Board of attempting to disenfranchise employees   by exempting them from the Act as "supervisors," and in response, Rep. Robert Andrews (D-NJ) introduced   H.R. 1644, the RESPECT Act   in the 110th Congress.  This Act would narrow the definition of "supervisor" in the NLRA and allow unionization of greater numbers of workers -- many likely considered front-line supervisors by employers.

-  IBM Corp., 341 NLRB 1288 (June 9, 2004)  , wherein the Board returned to earlier precedent holding that non-union employees have no Weingarten rights to be accompanied by a co-worker representative during investigatory interviews.  A decision in which Chairwoman Liebman participated as a Member of the Clinton Board,  Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (July 10, 2000)  , had extended these rights to non-union workers for the first time.

-  Sheet Metal Workers, Local 15, 346 NLRB 199 (January 9, 2006)   and  Laborers Eastern Regional Organizing Fund, 346 NLRB 1251 (April 28, 2006)  , wherein the Board addressed the issue of what constitutes picketing, but left open the question of whether “bannering” constitutes picketing.  Bannering is a practice in which a union representatives hold a large banner in front of an employer’s facility criticizing the employer’s employment practices without actually creating a physical barrier to the employer’s facility.

-  Oakwood Care Center, 343 NLRB 659 (November 19, 2004)  , wherein the Board returned to its decades-old rule that prohibited the certification of “multi-employer bargaining units” without the consent of the employers.

- On February 26, 2008, the National Labor Relations Board issued a  notice of proposed rules   in which it proposed creating a new type of jointly-filed representation (RJ) petition that would shorten the period between the filing of a petition and the conducting of an election to 28 days with the consent of the employer and union.

Finally, with congressional support for card check on the wane, organized labor may encourage its new allies on the Board to shorten the time period for elections. The current 42-day standard has been in place since 1996, when the Board set the measure pursuant to the Government Performance and Results Act. The Board appears to be free to change that standard at any time without any formal opportunity for public comment.

Thursday's hearings  will likely advance significantly the process toward the nomination and confirmation of Messrs. Becker and Pearce and the return soon of the Board to a full complement of Members.  Employers must follow these developments closely and prepare for the resulting shifts in the regulatory landscape.  For more detail on any of the cases or issues outlined above, please visit  EFCA Report, or contact one of our attorneys to discuss further.


If you would like more information, please contact any of the McKenna Long & Aldridge attorneys or public policy advisors with whom you regularly work.

You may also contact:

Richard B. Hankins - 404.527.8372 

Seth H. Borden - 212.905.8343