Four More Years – What the Election Means at the NLRB

You never heard about it in the debates, but one of the key issues facing Labor in the presidential election was who will serve on the National Labor Relations Board for the next four years. For better and for worse, in a hyper-partisan world, these appointments change the interpretation of laws that affect labor organizing faster than you can say “Antonin Scalia.”

In the nearly four years of the first Obama Administration, the Board’s progressive majority overturned a lot of bad Bush Board decisions and expanded workers’ rights with a number of new decisions and regulations that are vehemently opposed by anti-Labor forces.

The Obama Board has issued a host of major decisions that affect Labor’s ability to organize and consolidate organizing victories:

  • Bannering directed at a secondary employer (an employer who is not an immediate party to a labor dispute) is permitted (like handbilling, but not picketing) so long as the conduct is not confrontational.  Carpenters Local 1506 (Eliason& Knuth) (2010).  Similarly, union activists may use a large inflatable rat along with leafleting to shame a secondary employer. Sheet Metal workers Local 15 (Brandon Regional Hospital) (2011).
  • A union may lawfully reach a “framework agreement” with an unorganized employer establishing ground rules for organizing and principles for post recognition bargaining.  Dana Corp. (2010).
  • Electronic posting of remedial notices is required where electronic communication is normally used by an employer to communicate with its employees. J&R Picini Flooring (2010).
  • Employers who require employees to waive rights to bring class actions or collective actions in arbitration agreements violate their employees Section 7 right to engage in concerted activity.  D.R. Horton (2012).
  • Employers who seek to frustrate organizing efforts by demanding that a group of employees the union proposes to exclude be included in a vote over union representation will be required to show that the excluded employees share “an overwhelming community of interest” with the employees in the Union’s proposed unit.  Specialty Healthcare and Rehabilitation Center (2011).
  • The Board adopted new rules to streamline Board elections and eliminate delays that employers exploit to launch anti-Union campaigns. For a summary see http://www.nlrb.gov/node/3240  This is currently on hold thanks to a super-conservative  judge.
  • The Board adopted a rule requiring employers to post a notice to inform employees of their rights guaranteed by the National Labor Relations Act.  See https://www.nlrb.gov/poster.   There are three separate lawsuits seeking to block the implementation of this rule.
  • The Board’s Acting General Counsel is more aggressively pursuing remedies to deal with employers who seek to destroy organizing campaigns by firing union supporters and other serious unfair labor practices.  GC Memorandum 10-07-2010.

All of these decisions and actions would likely have been reversed if President Obama had lost.  Because the Board is free to change its mind, there is perhaps no area of the law that changes more quickly than labor law when the White House changes hands.

By Ted Franklin

Legal Developments