Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

Currently, the NLRB has four sitting members.  This number will reduce to three when Republican Member Schaumber's term runs out in August, 2010.   All three remaining Board members are Democratic appointees. Typically, a fully constituted Board decides 300 to 400 cases per year and there was already a backlog of several hundred cases to be decided prior to the re-arrival of the 600 cases affected by the Supreme Court's decision.  Thus, the log jam of cases at the Board may continue as the Members wrestle with re-deciding the remanded cases.  It is unlikely that the current Board will overturn those decisions which favored unions or employees and there may be occasion for the new Board to change the law or Board's policy in the reconsideration of some of the cases.

We previously predicted that the new Board will overturn a significant number of decisions rendered in favor of employers during the preceding administration.  The agenda to consider those cases will be directed by the NLRB's General Counsel who has the authority to prioritize the cases coming before the Board.  With the departure of General Counsel Ron Meisburg, the President now has the opportunity to appoint his replacement.  However, even with the appointment of a new general counsel, the remand of these 600 cases may affect the Board's timetable in working through the predicted pro-labor agenda.

Currently, there are two NLRB members sitting by virtue of Senate confirmation, including Member Schaumber, a Republican appointee whose term expires in August.  Members Pearce and Becker are recess appointees appointed by the President in March, 2010.  A procedural maneuver by Senator Harkin to slip Member Becker, the most controversial of the Obama appointees, into a full term was blocked on the Senate floor late last week.  Republican Brian Hayes, who had been nominated by the administration for a full term, failed to receive a recess appointment from the President when he gave such appointments to Democrats Pearce and Becker.  Thus, without additional Board appointments or confirmations, there will be three sitting Democrats and no Republicans on the five-member NLRB by September 1, as well as a new General Counsel appointed by the White House.  Meisburg's resignation is also likely to fuel speculation that some sort of deal can be worked out between Democrats and Republicans to re-staff the full Board and the General Counsel's office at the same time. From the employer's perspective, such an agreement is hoped for but difficult to envision.

The employer community is expecting a shift in Board policy, rules and decisions toward the interests of labor. The fact that at or about the time of the recess appointments the Board hired an outside expert in the field of "rulemaking" has lead to enormous speculation that the NLRB intends to actively change its rules going forward. Many have also recognized that the Board does not have to undertake a formal process to change many of its current rules relating to elections.
 
The General Counsel can heavily influence the agenda and timing of cases that come before the full Board. There are a host of cases that can be lined up for decision, many of which can serve to overturn Bush era precedents unpopular with organized labor. One can expect the Board to revisit issues relating to the definitions of supervisors and independent contractors; whether employees have the right to call for an election after voluntary card check recognition; whether temporary employees can be organized; the use of email; whether non-union employees have Weingarten rights; pre-recognition bargaining; bannering; cessation of dues checkoff after contract expiration; whether "salts" must have a genuine interest in the job, and many more issues.

Even without the Employee Free Choice Act, the passage of which now appears unlikely, these developments should create greater opportunities for labor and a more challenging environment for business.