Legal Updates

Major Labor Law Developments Expected In 2010

March 2010 by Brian D. Carlson

The new year is shaping up to be an active one in the field of labor law. Developments expected during the coming year include the appointment of new members to the National Labor Relations Board (the “Board” or “NLRB”), a renewed push by the Obama Administration for passage of the Employee Free Choice Act (“EFCA”), and anticipated decisions by the NLRB in a number of important areas.

Composition Of The NLRB

Since the terms or recess appointments of three former members ended in December 2007, the NLRB has been operating as a two-member agency. The Board’s decisions have been issued jointly by Chairman Wilma Liebman (a Democrat) and Member Peter Schaumber (a Republican).

Last year, President Obama nominated three candidates (two Democrats and one Republican) to fill the open seats on the Board. Thus far, however, Senate Republicans have been successful in delaying confirmation of these nominees.

GOP senators have objected particularly to the nomination of Craig Becker, a Chicago union-side attorney who Republicans charge would seek to bring about major changes in current labor law, to employers’ detriment. In a party-line vote, the Senate Health, Education, Labor and Pensions Committee recently approved Becker’s nomination, and Democrats then sought to move the nomination forward to a full Senate vote. GOP senators have indicated, however, that they intend to filibuster the nomination, and in an initial February 9 vote, Senate Democrats were able to mount only 52 of the 60 votes needed to invoke cloture and force a floor vote. Although a number of senators were not present for this vote due to inclement weather, two Democrats crossed party lines to join Republicans in voting to maintain the filibuster, and none of the 41 Senate Republicans has expressed an intention to vote in favor of cloture. A second cloture vote on Becker’s nomination has not yet been scheduled.

Thus, the future of Becker’s candidacy remains very much in doubt, and it is likewise unclear when the other two Board nominees may be voted on. Should Republicans be successful in continuing to block Becker’s confirmation, it is possible that President Obama might withdraw his nomination and submit a less controversial candidate for consideration. Alternatively, Senate Majority Leader Harry Reid has suggested that the open NLRB seats might be filled through recess appointments, a strategy that Senator Reid himself criticized when former President George W. Bush used such appointments to fill Board openings. The Obama Administration has hinted that the President might consider pursuing this strategy if his Board nominees continue to be stalled in the Senate, but has given no clear indication as to whether (or when) such recess appointments might be made.

Change In NLRB General Counsel

A matter that has not drawn significant attention but may emerge as a major issue is the pending expiration (in August) of Republican Ronald Meisburg’s tenure as General Counsel of the NLRB. Because the General Counsel’s Office functions as the Board’s “gatekeeper” by deciding whether to pursue actions against employers and unions, the appointment process for Meisburg’s successor may become at least as controversial as that involving Becker and the Obama Administration’s other Board nominees.

Although President Obama has not yet nominated a candidate to succeed Meisburg, this is likely to occur by the spring. The Administration’s success in shepherding its nominee through the confirmation process may well hinge on whether a resolution of the current standoff on President Obama’s NLRB nominations has been reached.

Validity Of Recent Board Decisions

As noted, the NLRB has been functioning as a two-member agency since December 2007. Numerous parties have challenged the Board’s right to adjudicate cases this way, arguing that the National Labor Relations Act (“NLRA”) does not permit the NLRB to delegate its authority to a quorum of fewer than three members. If this argument prevails, the many decisions issued by the two-member Board during the past two years may need to be withdrawn and reconsidered after the NLRB has gained at least one additional member.

The U.S. Supreme Court has agreed to resolve this issue. Oral arguments are scheduled for March, and a decision is expected by the end of June. Thus far, five of the six federal Courts of Appeals that have considered the matter have held that the Board is permitted to operate as a two-member agency. Notably, however, the one appellate court that has held to the contrary is the Court of Appeals for the D.C. Circuit, whose views on labor-law matters are often given special weight by the Supreme Court. Also, since the NLRA permits any party – regardless of its location – to appeal an adverse Board decision to the D.C. Circuit, until the Supreme Court has ruled on the matter, parties may be able to delay enforcement of current Board orders by appealing to the D.C. Circuit.

Prospects For Passage Of EFCA

The proposed EFCA would significantly alter existing labor law in a number of ways. In particular, the legislation would do away with the requirement of a representation election where a union obtains signed authorization cards from a majority of employees in a proposed bargaining unit. In addition, the EFCA would provide for the terms of an initial collective bargaining agreement (“CBA”) to be determined through mandatory, binding arbitration if an employer and union fail to reach agreement on the terms of a CBA within a short time period after commencing bargaining.

Given President Obama’s strong support of the EFCA and the overwhelming majorities enjoyed by congressional Democrats following the 2008 elections, most observers expected that the legislation would be enacted relatively swiftly after the new administration’s inauguration. A number of moderate Senate Democrats, however, have expressed concern over certain aspects of the bill, and the Obama Administration ultimately decided to suspend its active lobbying for the legislation while it pursued national health-care reform.

Now, with the future of health-care reform in serious question, and with the recent election of Massachusetts Senator Scott Brown having put an end to the Democrats’ filibuster-proof majority, the prospects for enactment of the EFCA seem equally unclear. President Obama has continued to voice strong support for the bill, and it is likely that the Administration will renew its lobbying efforts in the future. In the meantime, however, it seems likely that the Administration will press the NLRB to speed up the scheduling of union elections, enforce the NLRA more aggressively as to alleged violations occurring during elections, and otherwise address the union concerns that underlie the proposed EFCA. Because the future of the EFCA is of tremendous significance for businesses, employers should continue to pay close attention to developments in this area.

Future NLRB Decisions

Finally, 2010 may bring significant NLRB decisions in a number of areas. In particular, some highly anticipated decisions have been pending for some time, perhaps because the Board has been reluctant to decide them as a two-member body. For instance:

The NLRB has yet to rule on a pending case considering whether employees of a vendor that leases space in a property have a right to distribute union literature in public areas of the property during non-working hours.
The Board is expected to decide whether a “neutrality agreement” (under which an employer agrees not to actively oppose a union’s workplace organizing efforts) can include specific conditions that will apply to future bargaining in the event that the union is ultimately certified as the employees’ bargaining representative.
The NLRB has several pending cases considering whether a union violates its duty of fair representation by requiring members to inform the union on an annual basis if they object to paying dues for non-representational purposes (such as political lobbying).

These decisions could have significant implications for future union organizing campaigns.

Also, assuming that the NLRB is eventually reconstituted with a Democratic majority during the coming year, many observers anticipate that the Board eventually will overrule or modify a number of Bush-era decisions that were favorable to employers. These decisions include:

A Board decision (Guard Publishing) giving employers wide latitude to prohibit employees from using employer-provided e-mail and other electronic communications systems for union-related messages.
A holding (Oakwood Healthcare) expanding the legal standard under which employees may be found to be supervisors, and thus not entitled to be represented by a union.
A decision (H.S. Care) requiring that a joint employer (such as a staffing company) consent to the inclusion of its employees in a bargaining unit with employees of another business.

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If you have any questions about these matters or any other labor-law issues, please do not hesitate to contact us. We regularly assist employers in this area and would be happy to help.