What Manufacturers Should Expect From the NLRB

By April 13, 2010Labor Unions

We’ve written extensively about the views of SEIU counsel Craig Becker as a nominee to the National Labor Relations Board. Now that the both Democrat nominees (Craig Becker and Mark Peace) have been recess appointed to the Board what should employers expect?

This is the first time since 2001 that there has been Democratic majority, the Board faces a huge backlog of cases from over the past two years as well as the potential for many contested rulings made by a two-member Board being deemed invalid by the Supreme Court. (The New Process Steel case.)

As numerous labor attorneys predict, the newly constituted Board is expected to take a new, potentially radically different approach to case decisions and may begin the process of rulemaking.

  • Seth Borden of McKenna, Long and Aldridge believes that many cases decided in September 2007 may be revisited. They include Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), where the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative does not bar the processing of a decertification petition filed during the first 45 days after recognition.
  • Former NLRB member John Raudabaugh, now with Nixon Peabody, highlights two key decisions as being at risk: Register Guard and Oakwood Healthcare Center. In Register Guard the Board determined that employees have no statutory right to use electronic resources of their employers (such as e-mail) for the purposes of unionization. In Oakwood Healthcare the board ruled that front line supervisors should not be members of collective bargaining unions that are designed for rank-and-file employees.
  • Hal Coxson of the firm Ogletree Deakins offers a detailed review of key decisions that may be revisited. Coxson also sees a possiblity that a newly constituted board may attempt to codify more controversial policy changes through rulemaking. To read more click here.

As this blog has noted before, the current NLRB Chair Wilma Liebman has asserted that recess appointed Board members should show restraint in making major policy changes when she said: “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.” We hope that the current recess appointees heed this wise advice from the Chair. In the meantime, employers should prepare for a much more active Board, regardless of the direction it takes.

UPDATE (10:29am): Wilman Liebman speaking at the annual Hunter College national conference on collective bargaining in higher education yesterday detailed her view of the direction of the new NLRB according to BNA’s Daily Labor Report (subscription needed). She notes that the Board “will operate, I assume, under continuing scrutiny and controversy.” She further explained that while the board will seek a “more dynamic” reading of the National Labor Relations Act than the “static” approach of the Bush years, it would be unrealistic to expect “fundamental, wholesale, or radical change.”

But in her remarks the Chair notes that decisions by the Obama board, she said, will seek “a more dynamic interpretation of the statute,” looking at real-world impacts, needs, and facts, “not just the words of the law.”

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