A Publication of WTVP

As presidential administrations change, the philosophies and allegiances of federal regulatory agencies generally follow their lead. The current National Labor Relations Board seems to reflect the pro-union politics of the administration.

Politics are cyclical. One of the spoils of victory is the prerogative to fill federal agencies with appointees who share the administration’s philosophies. In 2008, the Lilly Ledbetter Fair Pay Act and the Employee Free Choice Act (“EFCA”) were central among the legislative priorities of the newly minted Obama administration. The promptly adopted Lilly Ledbetter Act overturned a similarly-named U.S. Supreme Court decision and extended statutes of limitation to allow pay discrimination claims reaching back over many years. The EFCA, which would have forced employers to accept a union’s “card-check” organizing effort without a secret ballot election, failed in the face of strong business opposition. Organized labor’s legislative agenda has since languished, with Congress focused on healthcare, budget, and economic stimulus questions.

But what unions could not get in Congress, they have been getting from the National Labor Relations Board (“NLRB” or the “Board”). Federal agencies exercise several different powers: the power to make rules interpreting statutes adopted by Congress; to prosecute alleged violations; and, similar to a court, to decide cases between employers and unions. Labor’s cause has benefited from the NLRB’s exercise of each of these powers.

In Specialty Healthcare and Rehabilitation Center of Mobile, the Board overturned years of precedent. Prior Board practice generally resulted in a single “wall to wall” bargaining unit of all similarly-situated employees, such as “all production and maintenance workers.” The “wall to wall” unit avoided fracturing the workplace into numerous small units likely to present conflicting demands and increase the employer’s bargaining burden. In Specialty Healthcare, the Board allowed the union to cherry-pick a smaller unit and imposed on the employer the burden to “demonstrate that the excluded employees share an overwhelming community of interest with the included employees.” The Board jettisoned the idea of determining an appropriate unit, to allow the union to organize a more sympathetic, small unit. The Board’s minority Republican member wrote, “Make no mistake. Today’s decision fundamentally changes the standard” for defining appropriate bargaining units.

The Board enraged the business community and right-to-work states when it filed suit against Boeing, claiming that the aerospace company retaliated against union members whose strike had shut down production of its newest plane by opening a new production line in South Carolina. The Board acted even though Boeing simultaneously hired additional union workers and increased production on the original union line. The public perception was that the NLRB acted to keep Boeing, or any other manufacturer, from starting work in a right-to-work state where the union’s power was limited. Only when Boeing and the union settled their dispute did the NLRB dismiss its complaint.

Receiving less public attention were two other pro-union decisions in August 2011: Lemons Gasket and UGL-UNICCO Service Co. In each, the Board overturned 2007 decisions favoring selection of union representatives by secret ballot elections and extended the union’s protected time periods, during which neither employers nor workers can seek to decertify the union.

Two widely publicized rule-making exercises also have advanced union interests. The Board has adopted a rule requiring virtually all employers to post notice to employees of their rights to organize or join a union. When the rule becomes effective on April 30, 2012, employers will be mandated to post the NLRB-authored notice in a conspicuous location, with other employment posters. The second rule change accelerates the pace of union elections. In a final rule adopted December 21, 2011, the Board acted to expedite elections and limit the employer’s pre-election challenges; the prior bar to elections within 25 days of the election order was removed. Pre-election hearings will be limited to whether the union has made the necessary showing of employee interest. Traditional pre-election issues such as voter eligibility and unit scope will be determined after the election, rather than before. Although unions are often communicating with employees long before filing their petition, the rule has the effect of severely reducing the time an employer has to communicate with the employees before a vote. iBi