The National Labor Relations Board in The Obama Administration: What Changes to Expect

September - 2009

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Foreword

For the last several years, most of the policy discussion related to labor-management relations and union organizing has properly been focused on the Employee Free Choice Act (EFCA), legislation that would radically alter the rules for union organizing and collective bargaining in ways that would ensure that labor unions would have the upper hand, to the detriment of both employees and employers.

However, the National Labor Relations Board (NLRB) has the power to significantly increase union power and leverage without intervention by Congress. Indeed, as this publication goes to press the President has nominated three individuals to the vacant seats on the NLRB. Assuming they win Senate confirmation, the stage will be set for sweeping policy changes that have received scant attention compared to the debate over EFCA. The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized.While some of these cases are high profile, such as the Board's decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law's secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations. It is also likely that the Board will revisit its traditional hesitancy to engage in rulemaking and could attempt to enshrine some of its more controversial policies by promulgating regulations, thus making it substantiallymore difficult for future administrations to undo the damage. We hope that this analysis will be helpful both for policymakers considering the implications of nominees to the NLRB and for employers who wonder what the future may have in store for them. On behalf of the U.S. Chamber of Commerce, we wish to thank Harold P. Coxson and Christopher R. Coxson of the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. for their important work on this analysis. Randel K. Johnson
Senior Vice President, Labor, Immigration, and Employee Benefits
U.S. Chamber of Commerce

September 2009