Union-side labor attorneys Craig Becker and Mark Gaston Pearce were sworn in on Wednesday, April 7, 2010, as Members of the National Labor Relations Board. Messrs. Becker and Pearce, Democrats, were the subjects of controversial recess appointments by President Obama on Saturday, March 27, 2010. They join Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber to bring the Board within one Member of its full five Member capacity. President Obama previously nominated Republican Brian Hayes to be the fifth Member, but declined to appoint him with the others. This leaves the Board tilted disproportionately 3-1 in favor of Democrats, ensuring a Democrat majority on all panels hearing cases.
What should employers expect? With all the commotion surrounding the recess appointments, and the Obama administration’s likely preference to negotiate Senate approval of all three nominees for full-terms, the Board may continue to avoid taking controversial actions for the immediate time-being. However, in time, employers are likely to note a significant shift in NLRB activity in favor of employees and organized labor’s positions. Members Becker and Pearce join Chairwoman 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 Bush administration’s Board.
As we noted in a July 2009 Client Alert (“What to Expect from President Obama’s Labor Board”), employers wondering what Board positions might be vulnerable to reversal should look to the many NLRB 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 has reiterated her views consistently many times since.
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 conduct of an election to 28 days with the consent of the employer and union.
Finally, the Board is likely to explore the possibility of administrative rule-making to alter the manner in which employees choose union representation and the way charges are investigated and prosecuted against employers. There has been much speculation about whether the Board will seek to shorten the internal time target from 42 days to 14 days between the filing of a petition and the conduct of a union representation election. Moreover, in our recent Bloomberg Law Reports article, “Key Remedial Elements of the Employee Free Choice Act That May Be Implemented Without Legislation” (Feb. 22, 2010), we highlighted additional actions the Board may explore:
- A commitment to pursuing immediate injunctive relief in more organizing and/or “first contract” cases;
- More aggressively pursuing civil contempt damages in the compliance stage of unfair labor practice (“ULP”) litigation;
- Issuing “Gissel” bargaining orders in a wider array of cases, ordering recalcitrant employers to recognize and bargain with a union in the absence of an election; and
- Becoming more involved in “first contract” negotiations with dilatory employers, for example, by extending the certification bar period; requiring bargaining on a prescribed or compressed schedule; requiring periodic reports to the NLRB on the status of negotiations; and/or ordering reimbursement of bargaining costs.
Employers must follow these developments closely and prepare for the resulting shifts in the regulatory landscape.