By all accounts, the Employee Free Choice Act (EFCA) is temporarily stalled, taking a backseat to the economy, health care reform and who knows what else. Make no mistake, EFCA is not dead … just ask newly installed AFL-CIO president Richard Trumka, who declared just last week at the federation’s annual convention that EFCA remains big labor’s top priority. For sure, EFCA is delayed. But for how long, what a compromise (if there is one) may look like, and what may happen in the interim are anyone’s guess.

The NLRB has always had the authority to engage in the kind of extensive “rulemaking” exercised by other federal government agencies. Traditionally, the Board has not used this authority to overhaul policy but instead has established the rules governing labor — management relations on a case-by-case basis. But the Board’s historical reticence to make policy through “rules” rather than case decisions may be getting ready to change.

Last winter, President Obama elevated Democrat Wilma Liebman from member to chair of the NLRB. Several months ago, he nominated Democrats Craig Becker and Mark Pearce, as well as Republican Brian Hayes, to join Liebman and Republican member Peter Schaumberg on the five-member Board. It is the unwritten rule that the majority of the members of the NLRB be from the sitting president’s party, which, in turn, often leads to rulings made by one president’s Board being overturned by the Board appointed by a subsequent president. Of course, the cases that raise controversial issues of interest to a new Board must bubble their way up to the Board from the NLRB’s regional offices and administrative law judges. To that end, next August the President will also be able to appoint a successor to Ron Meisburg, the Board’s current general counsel, appointed by President Bush. The general counsel serves as the agency’s chief prosecutor. He decides what cases to pursue and therefore the issues on which the Board will have the opportunity to rule.

Chairperson Liebman, formerly with FMCS, the Bricklayers union and the Teamsters, has made clear through case dissents and public remarks her opinion that “virtually every recent policy choice by the [Bush] board impedes collective bargaining, creates obstacles to union representation or favors employer interests.” She has signaled her intention to overturn many of the Board’s recent major decisions, either by overruling them when the chance presents itself or by using the Board’s rulemaking authority to effect the policy change.

But it is not the chair’s views on the issues that are raising the most eyebrows. Rather, the perspectives of Craig Becker, who has worked for the AFL-CIO and SEIU and taught law at UCLA, Chicago and Georgetown, are causing great concern among employers and commerce groups. Mr. Becker has written extensively about his views on the NLRB, the role of employers in union elections and the problems he sees in our nation’s labor-management system. The most widely quoted of his writings is a 1993 Minnesota Law Review article in which he argued that:

  • The Board has wide, discretionary authority to establish policy and procedures for conducting elections, i.e., rulemaking;
  • Employers “should be stripped of any legally cognizable interest in their employees’ election of representatives,” i.e., employers should not have any role in the union election process;
  • Employers should not be permitted to have observers at the polls to challenge potentially ineligible voters;
  • Employers should not be able to hold captive-audience meetings with employees;
  • Unions should have equal access and elections should be held off-site;
  • Gissel bargaining orders (currently imposed only for the worst employer violations) should be the expected remedy, not the exception for employer violations.

While the extent to which the Board can rewrite its rules may be debatable, many (perhaps including Liebman and Becker) believe that the Board can engage in procedural changes or rulemaking that could, among other changes:

  • drastically shorten the time frame for holding an election;
  • eliminate pre-election procedures to determine who should be in the voting unit;
  • require the employer to turn over employee names, addresses and phone numbers early in an organizational drive;
  • require equal access for unions during campaigns;
  • increase off-site or mail-in ballot elections; and
  • require recognition of minority unions.

In other words, even if EFCA does not pass, or is substantially watered down when it does, there is reason to believe that much of what organized labor hoped would be accomplished through EFCA may yet be achieved through the rulemaking power of a newly constituted Board.

In addition, many believe that the Board is likely to overturn a number of significant decisions issued by the previous Board. These rulings by the new Board, were they to occur, might narrow the definition of who a supervisor is under the NLRA, restrict an employer’s right to limit the use of company email systems for solicitation, restrict a company’s right to file a lawsuit against a labor organization, enhance the rights of “salts” and encourage prerecognition agreements between companies and unions.

Confirmation hearings on the new appointments have not yet been held. The U.S. Chamber of Commerce has written the Senate to ask in particular that the Senate carefully review the appointment of Mr. Becker, including whether he continues to maintain the positions outlined in his various writings.

In anticipation of the passage of EFCA, we recommended that employers take a number of steps to prepare. See Client Alert November 2008. The potential that radical reform will be implemented administratively suggests that employers who intended to plan for the passage of EFCA should dust off those plans and implement them now, in anticipation of the “reforms” that could be on the way whether or not EFCA ever makes it to the Senate floor.