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NLRB May Make Significant Changes Even Without EFCA

The National Labor Relations Board (NLRB) celebrated the 75th anniversary of the National Labor Relations Act (NLRA), which created the Board. Commenting on the stalled so-called Employee Free Choice Act (EFCA), Chairman Wilma Liebman noted that congressional inaction on the EFCA may contribute to the “flip-flopping” with which the Board has been accused. She also hinted that if Congress fails to pass the EFCA, the NLRB itself may have to address those issues.

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The NLRB was created by the same Act that it enforces. It is the direct beneficiary of the Supreme Court’s directive that in such circumstances, reviewing courts (primarily, the U.S. Circuit Courts of Appeals) must show great deference to the agency’s interpretation of the Act. So the question for courts on reviewing NLRB decisions is not whether the Board has chosen “the most appropriate” interpretation of the Act but only whether it has chosen “a reasonable” interpretation.

With that kind of leeway, the NLRB has increasingly veered from one policy direction to another, depending on which party is in power. For example, during one 18-month period, the Clinton Board reversed long-standing interpretations in almost 70 areas, most changes having the effect of making it easier for unions to organize or easier for the general counsel to prove unfair labor practices against employees. The Bush Board reversed some of those decisions. Chairman Liebman’s and member Schaumber’s talks at the 75th anniversary celebration suggested that both foresee significant changes in statutory interpretations once a Democratic majority is established.

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In a mid-November speech to the U.S. Chamber of Commerce, Chairman Liebman discussed a few of the significant issues facing a new NLRB majority. One case raises the question of whether the Board’s interpretations should be changed so that a union that demands recognition without an election may suggest to the employer the kinds of contract terms it would be willing to agree to. Historically, the Board has taken the position that in such a situation, the union would be severely tempted to sell out the employees to avoid an election, and it forbade such discussions. Allowing those discussions may make employers more willing to voluntarily recognize unions on the basis of cards, but in guaranteeing the employers some certainty with respect to collective bargaining terms, a union may favor its interest rather than employees’ well-being.

A second group of cases deals with the delicate line between union handbilling of an employer’s customers and bystanders, which is free speech protected by the First Amendment to the U.S. Constitution, and union picketing, which is severely circumscribed. Unions have devised a number of innovative procedures, ranging from bannering to positioning large inflated rats outside neutral employers’ facilities. The law in this area is not settled, but classifying bannering and similar activities as speech will greatly expand their use.

Chairman Liebman failed to mention a third key issue — whether employees should have the right to use their employers’ e-mail and Internet system for the purpose of encouraging collective actions and organizing a union. At present, e-mail is treated like employer-furnished telephones, copying machines, and bulletin boards, which the employer may limit to business use. But if Chairman Liebman’s prior dissent becomes law, employers would be far more limited in their ability to restrict use of their own computer systems and equipment.

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Finally, Chairman Liebman referred to the possibility of “rule making,” a process whereby administrative agencies promulgate a series of rules that control subsequent litigation. The Board has seldom used rule making, but veteran Board watchers are concerned that by using this process to impose strict limitations of the classes of employees eligible to vote in an NLRB-conducted election (unit determination) and directing the general counsel to expedite elections (to, say, five to 10 days), the Board could accomplish by regulation essentially what unions seek through the EFCA.

Together, these developments strongly suggest that regardless of what Congress does with the EFCA, employers should anticipate substantial changes in the way the labor laws are interpreted. Consult with experienced labor counsel and begin making necessary provisions for employee selection, training, and education, especially since some changes may be forbidden once union organizing starts at a facility.