The NLRB interprets and enforces the National Labor Relations Act, (https://www.nlrb.gov/national-labor-relations-act) which means, among other things, that the Board decides cases that define: 1) what an employer can and cannot do in union elections, and 2) what constitutes an unfair labor practice.

Because members of the Board are appointed by the president (subject to approval by the U.S. Senate), historically the Board generally tilts to some extent either pro-employer or pro-union depending on who is in the White House. That is certainly true today — a majority of the members on the current Board have very pro-union backgrounds, and the decisions being issued by the Board reflect a rather dramatic pro-union bias. There were four significant examples of this pro-union tilt in just the last week:

  1. The NLRB finalized a rule that will require, starting in November 2011, that all employers subject to NLRB jurisdictional standards post a notice informing employees of their rights under the federal labor law. The rule will require employers to post a form notice, and to publish the notice on a company intranet or Internet site if the employer customarily uses such media to communicate with employees about rules and policies.
  2. In Specialty Healthcare, the Board overruled longstanding authority and made it much easier for unions to organize small mini-units of employees within an employer's workforce and exclude other employees from the unit. This will make it easier for unions to get a foot in the door. They will now be able to more easily pick and choose small units of employees within a workforce that they can successfully organize.
  3. In Lemons Gasket, the Board overruled prior authority and determined that in cases where the employer has voluntarily recognized a union (usually based on card count), there can be no challenges to the union's majority status (e.g., through decertification) for at least six months and, depending on the circumstances, up to one year.
  4. In UGL-UNICCO, the Board overruled prior authority and determined that when a successor buys a unionized business, there is a "conclusive" presumption of continued majority support for the incumbent union for a defined period of time (again, during this defined period of time, there can be no challenges to the union's majority status through decertification, and so forth). In cases where the successor employer adopts the predecessor's terms and conditions of employment, the defined period will be six months after the first bargaining session between the parties. In cases where the successor employer sets new terms and conditions of employment, the defined period will likely be longer — at least six months and, depending on the circumstances, up to one year.

How long will this pro-union tilt continue? If a Republican is elected president in 2012, there would likely be a shift back in the direction of employers. But in the shorter term, it is possible the Board will lose its ability to issue decisions at the end of 2011. The Board is normally supposed to have five members. Currently, there are only three members, and the term of one of those members expires at the end of the year. At that point, unless the Republicans in the Senate decide not to block other nominees, there will be only two members on the Board, which is not a sufficient quorum to make decisions.