White House Announces NLRB Nominations - What Will the "New" NLRB Mean for Employers?

July 19, 2009

By: Peter A. Jones

This blog was prepared with the assistance of Bond, Schoeneck & King PLLC attorney Kerry Langan.

On July 9, 2009, the White House announced that it had sent three nominees for membership to the National Labor Relations Board (“NLRB” or “Board”) to the Senate for confirmation.  The latest nominee, Republican Brian Hayes, joins previously announced nominees, Democrats Craig Becker and Mark Gaston Pearce, as the three President Obama nominees to the five member Board. 

Currently, the Board has been operating with just two members, Chairperson Wilma Liebman (a Democrat) and Member Peter Schaumber (a Republican).  The United States Court of Appeals for the D.C. Circuit has recently held that the two-member Board lacks authority to issue decisions.  See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, No. 08-1162 (D.C. Cir. May 1, 2009).  Three other federal Circuits have held to the contrary.  See Northeastern Land Services Ltd. d/b/a The NLS Group v. NLRB, No. 08-1878 (1st Cir. Mar. 13, 2009);  Snell I sland SNF LLC, d/b/a Shore Acres Rehab. & Nursing Ctr. v. NLRB , No. 08-3822 (2d Cir. June 17, 2009); New Process Steel, L.P. v. NLRB, Nos. 08-3517, 08-3518, 08-3709, 08-3859 (7th Cir. May 1, 2009).

The new nominees, assuming they are confirmed by the Senate, which now has 60 Democratic members, will address the quorum issue and allow the Board to operate with a 3-2 Democratic majority.  And, the three Democratic members are all on record as being staunchly pro-union in their views.  Chair Liebman has been a vigorous dissenter in a number of Bush-era Board decisions.  Nominee Becker is currently Associate General Counsel to both the Service Employees International Union and the AFL-CIO.  See NLRB Press Release.  Nominee Pearce is a former NLRB attorney at the Regional level and has been a union-side labor lawyer in recent years.  See NLRB Press Release.

Although the proposed Employee Free Choice Act (“EFCA”) and other potential labor law reforms have received the lion’s share of attention from commentators and labor and management advocates, the composition of the NLRB may well have a greater impact on labor-management relations than any compromise EFCA or labor law reform ultimately enacted.

Board decisions in many areas have historically been heavily influenced by presidential appointments.  With a newly minted 3-2 majority, here are some cases that might be ripe for reversal by the new Board:

•  Weingarten Rights in a Non-Union Setting.  IBM Corp., 341 NLRB No. 148 (2004).  In IBM, the Board held 3-2 that employees in a non-union workplace are not entitled to a co-worker representative in investigatory interviews that may result in discipline.  The Board has flip-flopped on this issue over the years and will likely return to the prior rule of Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000), holding that non-union employees are entitled to employee representatives in those cases.

• Graduate Students Rights to Organize as Employees Under the Act.  Brown University, 342 NLRB No. 42 (2004).  Chair Liebman vigorously dissented in the Brown case, which held that graduate students, whose duties were primarily related to their status as students, were not statutory employees and therefore could not organize under the Act.  This decision overruled New York University, 332 NLRB 1205 (2000).  A change in this rule, reverting to the New York University rule, could have significant implications for institutions of higher education.

• Organization of Employees of Joint Employers in a Single Bargaining Unit.  H.S. Care LLC, 343 NLRB No. 76 (2004).  The Board returned to the long standing rule that employees of a temporary agency cannot be included in a bargaining unit of regular employees of the employer unless both the employer and temporary agency consent.  The new Board may return to the M.B. Sturgis, 331 NLRB 1298 (2000), rule to the contrary, with significant implications for employers who use temporary employees.

• Salting Cases.  Exterior Systems, Inc., 338 NLRB No. 82 (2002).  A Board majority found that union salts – employees who work for a union and apply for employment with an employer with an intent to organize the employer or an intent to not be hired so a charge may be filed – must have a genuine interest in gaining employment to be protected by the Act.  It is likely that this standard will be repudiated, returning to FES, 331 NLRB 9 (2000), making it easier for unions to maintain unfair labor charges against employers which they target for organization.

• Email Solicitation.  The Guard Publishing Co., 351 NLRB 1110 (2007).  In Guard Publishing, the Board decided, in a 3-2 decision, that employers may lawfully maintain a policy prohibiting use of its email system for “non-job related solicitations.”  The new Board may reverse this decision and require employers to allow union adherents to use email systems to solicit employees to support and join unions during union organizing drives.

The following examples are just a few of the changes that may be in store with a new Board.  The changes could be many and their impact will likely be great.  As is often the case in the analogous situation of Supreme Court composition, the changes effected by the new Obama NLRB may well have greater impact than any legislative changes we see in the next four years.