• The NLRB in Transition - Whither Board Law?
  • April 13, 2010 | Author: Harold R. Weinrich
  • Law Firm: Jackson Lewis LLP - Reston Office
  • For the first time in more than two years, the Board has clear quorum.  The question now turns to how the agency will exercise its authority. This is an issue of no small concern.  For an agency that is supposed to bring order and stability to labor-management relations, change and uncertainty are unsettling.  This is all the more true when its Chairman expresses seemingly conflicting intentions.

    We have heard that the NLRB, now firmly in Democratic hands, would kick over the traces of the “Bush Board.”  In short order it would reverse precedents that were deemed inimical to organized labor and employees, some may say.  Chairman Wilma Liebman, herself, has signaled her eagerness to make changes.  Yet a close examination of her views suggests changes in Board law could take place more deliberately - maybe.  That two of the four members, Craig Becker and Mark Pearce, will owe their positions to Presidential fiat, rather than Senate confirmation, matters more to the Chairman, she professes, than many would allow.

    This is not the first time Ms. Liebman has been on a Board of recess appointees.  It happened in 2002.  Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.”  She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.”

    At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge.  Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this.  Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress.  This “EFCA-lite” likely would include:

    • Rapid-fire elections
    • Diminished ability for employees to receive information from management and make an informed decision
    • Much earlier union access to employees names and addresses
    • Access to employer premises for union organizers
    • Restrictions on employers’  ability to communicate effectively with their own employees
    • Union access to employer-maintained electronic technology
    • Doubt created over the supervisory status of first line managers

    Should the new “recess Board” fail to stay within the limited role the Chairman has espoused, an explanation certainly will be expected from her.  It may be called for sooner rather than later.