E-Newsletter

August 2009

Pro-Labor Changes Expected from the Obama NLRB

Timothy C. Kamin, Esq.

Employers should expect a number of pro-labor changes, further restricting employer rights, in the National Labor Relations Board's ("Board") interpretation and application of the National Labor Relations Act. These pro-labor shifts in Board policy are in addition to the anticipated legislative changes being pushed by pro-labor Democrats, most notably the Employee Free Choice Act.

President Obama has announced nominations to fill the three existing vacancies on the Board with a heavy pro-labor majority, and has nominated current pro-labor Board Member Liebman to serve as Chair. Once the Obama Board is in place, employers are well-advised to monitor the activities of the Board in anticipation of a number of policy reversals that are likely to occur.

Employee Use of Company Email Systems. Under the prior administration, the Bush Board held that employees had no absolute right to use company-owned and maintained email and computer systems - the company's property - for the purposes of union organizing and other protected activities, and that employer policies forbidding such use are lawful provided they are enforced in a non-discriminatory fashion. The pro-labor Obama Board is expected to agree with labor's argument that computer systems are a virtual extension of the physical "workplace," and that employees have the right to share pro-union messages within that "workplace."

Non-Union Employee Right of Representation in Disciplinary Meeting. The Board has long held that unionized employees have a right to be represented by a union steward or coworker in an investigatory interview that reasonably may lead to disciplinary action. The Bush Board ruled that non-union employees do not have the right to such representation. It is expected that the Obama Board will reverse this position and extend representation rights to non-union employees.

Protection of Employee Choice Following Voluntary Recognition. The Bush Board held that where an employer has voluntarily recognized a union without a secret ballot election on the matter, the employees or a rival union may file a petition challenging that recognition within 45 days. This rule was designed to prevent unions and employers from taking action that would deny employees their true representational choice. Because the chief goal of labor unions is recognition by any means, it is expected that the Obama Board will reverse this rule and force a voluntarily recognized union upon the employees for at least six months.

Definition of "Supervisor" Under the Act. The U.S. Supreme Court criticized the Clinton Board for too narrowly interpreting the term "supervisor," such that many supervisors were declared "employees," eligible to engage in union activities. The Bush Board applied a more reasonable interpretation of "supervisor" which granted employers the loyalty of their supervisors. It is expected that the Obama Board will return to a narrower definition which will permit many mid-level supervisors to join unions and engage in union activities. In addition, there is pending legislation to redefine the term "supervisor" as proposed in the RESPECT Act.

We will keep a watchful eye on the activities of the Board on these and all significant matters. Employers are well advised to stay in contact with legal counsel for updates as changes occur.

For more information contact Krukowski & Costello, S.C.'s educational services department at (414) 988-8400.