Major Changes at the NLRB Under the Obama Administration and the New Congress
By: Frank L. Carrabba

When the Presidency and the Congress change from Republican to Democrat, major changes occur in the enactment and enforcement of labor and employment laws. One change that can be expected is the appointment of a new majority at the National Labor Relations Board (NLRB), which in the near future will be composed of three (3) Democrats and two (2) Republicans. Currently, there are three (3) vacancies on the five (5) member Board. Once the three (3) new Board Members are appointed by President Barack Obama, they must be confirmed by the Senate. At the present, there are only two (2) sitting NLRB members, one Democrat and one Republican.

As has been the case since the National Labor Relations Act (NLRA) was passed into law in 1935, a Labor Board majority of Democrats usually means their decisions will be pro-union. Therefore, several decisions issued by the George Bush Board will be overturned. Current NLRB Member Wilma B. Liebman, a Democrat, dissented in several critical decisions issued by the Bush Board. These cases address issues such as (1) whether and when union "salts" are considered to be genuinely interested in employment; (a union "salt" is a union member who applies for work with a non-union employer); (2) the length of the backpay period for union "salts"; (3) who is considered to be a "supervisor" under the NLRA; and (4) the rules that pertain to an employer's voluntary recognition of a union as the bargaining representative of its employees.

In addition to major changes in case law interpreting the NLRA, employers will see a major push on the legislative front to pass some form of the so-called Employee Free Choice Act (EFCA) that was introduced in the House of Representatives in February, 2007, but failed to come up for a vote in the Senate. It is considered by organized labor to be their top priority in the 111th Congress.

The EFCA, also known as the "card-check" bill, effectively eliminates the NLRB's secret-ballot election where employees vote for or against representation by a labor organization. Unions will be certified by the NLRB as the employees' representative by producing signed union authorization cards from a majority (51%) of the employees in a unit appropriate for bargaining.

The second section of the EFCA addresses "Facilitating Initial Collective Bargaining Agreements". Ten (10) days after a written request for collective bargaining, the parties must meet to begin bargaining for an Agreement. The parties are allowed a 90-day period to reach an agreement. If they do not, either party may request mediation from the Federal Mediation and Conciliation Service (FMCS). However, if a representative of FMCS is unable to bring the parties to an agreement during the 30-day period beginning on the date of the request for mediation, the FMCS will refer the contract dispute to an Arbitration Panel, who will write the contract for the parties that will be binding on them for a period of two (2) years.

The last section of the card-check bill, entitled "Strengthening Enforcement," would require the NLRB to conduct "priority investigations" of certain unfair labor practice charges filed during a union organizational drive up to the time when a first contract is entered into between the employer and the union. In addition, an NRLB finding that an employee was discriminatorily discharged during this time frame would result in the employer paying treble backpay to the employee. Also, employers who are found to be willful or repeat violators would be subject to a civil penalty not to exceed $20,000.00 for each violation.

Contractors should begin to prepare immediately for these up-coming changes. Under current NLRB law, union authorization cards are valid for a period of one year from the time they are signed. You can expect union leaders to target vulnerable employers for organization prior to the enactment of a new law or new decisions by the Obama NLRB. Contractors should review their wage and benefit package, their human resource policies and any weakness in supervision that may make them the target of a union organizing attempt.

Frank L. Carrabba, of the Law Office of Frank L. Carrabba, P.C., has been an active member of the IEC -TGC for many years. You can reach him at 713-621-8363


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