While labor law legislation such as the Employee Free Choice Act has stalled in Congress, unions continue to push for labor law reform through the NLRB. In this forum, they may have found a receptive audience. The NLRB has a three-vote majority of former union lawyers and a former NLRB attorney in the role of Acting General Counsel. Moreover, after announcing that it would reconsider nearly 100 decisions pending in the appeals court in the wake of the U.S. Supreme Court's decision in New Process Steel, the NLRB has begun to decide cases raising significant labor policy issues. In August alone, the Board issued 118 decisions. While employers should continue to monitor legislative developments, more rapid change is likely to take place at the NLRB in the form of new decisions and rulemaking favorable to unions. Employers will need to revisit their labor strategies and policies in light of these decisions, which impact both union and non-union employers.
Composition of the NLRB
The composition of the National Labor Relations Board (NLRB) can dramatically impact the labor landscape for employers. Traditionally, the NLRB is comprised of five members -- three members from the President's political party and two from the opposing party. However, from December 2007 to March 2010, only two of the five seats were occupied – one by Chairman Wilma Liebman (D), and the other by Member Peter Schaumber (R). The empty seats were due to expired terms and political wrangling that made it impossible for either party to confirm new candidates. Since the NLRB could only act if both members agreed, most of the cases involving significant labor policy questions were deferred. By practice and tradition, the NLRB generally does not establish new law or reverse prior precedent without three affirmative votes and typically does so only when there is a Board of four or five members. Over the next several months, the NLRB returned to its full complement of five members.
In March 2010, President Obama exercised his power to make recess appointments by appointing Democrats Craig Becker and Mark Pearce to the NLRB. The Senate subsequently confirmed Member Pearce and, in June, a Republican, Brian Hayes. In the meantime, the U.S. Supreme Court invalidated all of the decisions issued by the two-member NLRB, finding that a quorum of at least three members is required for NLRB decisions. The five-member NLRB then had to decide how to handle the several hundred cases potentially affected by New Process Steel and make a final push to issue decisions before Member Schaumber's term expired in August – which would require the NLRB to reassign all cases involving Member Schaumber to a new three-member panel. As a result, the NLRB issued 118 decisions during the month of August. These decisions have expanded labor law in ways favorable to unions, particularly when it comes to union organizing and election conduct. Some of the most significant decisions are discussed below.
The NLRB's Decisions of August
Union Organizing and Election Conduct
The NLRB's recent decisions reflect...