For the first time in more than ten years, the National Labor Relations Board will have five Senate-confirmed board members and no battles over recess appointments. However, the new Board will continue to be dominated by pro-union members selected by President Obama. The three Democratic members are: current Chairman Mark Pearce; Nancy Schiffer, associate general counsel for AFL-CIO; and Kent Hirozawa, chief counsel to Pearce. The two Republican members are seasoned management-side labor lawyers Philip Miscimarra and Harry Johnson III.
The confirmation of these Board members ends, at least moving forward, the uncertainty caused by the President’s recess appointments which were ruled invalid by the U.S. Court of Appeals for the D.C. Circuit. For employers, this new Board is not likely to behave much differently than the Board has since the President was elected. In fact, employers can expect this Board to continue to issue decisions that favor unions and employees. In addition, the Board may well exercise its rulemaking power with greater vigor than before.
Here is what employers may see from this new Board:
1. The Resurrection of the “Quickie/Ambush” Election Rule
In December 2011, the Board adopted a final rule that made numerous and substantial changes in how union election would be handled. The rule was not implemented because a federal court decided that the Board’s vote to adopt the rule was improper. Significantly, the court did not object to the substance of the rule and its changes. The new Board could reconsider the rule and take another vote and employers can expect the 3-2 Democratic majority to approve it. It is also conceivable that this Board could propose a rule that calls for additional changes to the election procedures that would assist unions in winning elections, such as making voting by mail the preferred method of casting ballots; Chairman Pearce has previously indicated his interest in taking a fresh look at the rule.
2. Take a Hard Look at Bush-Era Board Decisions
As the Board composition changes with each change in the Presidency, it is common for Boards to re-examine decisions issued under a prior Administration of the other political party. The Board under George W. Bush was accused of wholesale reversal of rulings under the Clinton Administration. This new Obama Board can be expected to continue its reversal of Bush-era Board decisions. By way of example:
Many have expected the Board to overrule a 2007 decision in Register-Guard, in which the Bush-era Board held that an employer can maintain a policy that prohibits employees from using its email system for non-job related solicitation including union organizing. Current Board law gives unionized employees the right to a union representative at an investigatory interview the employee reasonably believes may lead to discipline. During the Clinton administration, the Board extended this right to representation to non-union employees. That extension was reversed by the Board during the Bush administration, by a 3-2 vote. It would not be a surprise for the new Obama Board to extend representation rights to non-union employees again.
3. Continued Focus on Non-Union Employers’ Policies
Under the Obama administration, the Board has aggressively focused on policies and practices of employers who have no unionized employees. The Board has examined at-will statements, social media policies, confidentiality clauses, dress code policies, premises access policies and disciplinary action based on these policies and practices. Employers should expect the Board to continue its examination of any policy or practice that could interfere with employees’ ability to engage in union organizing or other activity protected by the National Labor Relations Act.
4. Micro Bargaining Units
In August 2011, the Board ruled in Specialty Healthcare that the Board will approve the bargaining unit requested by a union unless the employer can prove the unit improperly excludes employees who share “an overwhelming community of interest” with the employees in the proposed unit. Under Specialty Healthcare, the Board has issued numerous decisions finding that small units are appropriate; those units would not have been approved before Specialty Healthcare became law. Employers can expect the Board to continue to abide by its decision and can hope the Board will provide greater guidance and clarity on how this new standard will be used.
Will the new Board be the same as the old Board? Time will tell. It is unlikely the new Board will be more employer-friendly and it is distinctly possible it will be even more aggressive in issuing decisions and rules to enhance unions’ ability to organize employees.