President Obama's recent decision to bypass the Senate confirmation process and recess-appoint two new members to the National Labor Relations Board―both with many years' experience representing organized labor―could dramatically transform the landscape of traditional labor law over the next few years.

Craig Becker was Associate General Counsel to the Service Employees International Union, and Mark Gaston Pearce was a partner at Creighton, Pearce, Johnsen & Giroux, a union-side law firm in Buffalo, New York. Mr. Becker and Mr. Pearce join NLRB members Wilma Liebman, a Democrat and former union attorney, and Peter Schaumber, a Republican nominee of President Bush.

Observers believe that the NLRB may begin to aggressively review Board precedent and implement policies and decisions that are much more favorable to unions and union organizing. Although many decisions may be revisited, the following are significant ones likely to get another look.

Supervisory Status. In the recent Kentucky River decisions, a series of NLRB cases regarding the statutory definition of supervisors under the National Labor Relations Act, the NLRB generally held that employees such as charge nurses and lead persons, who are often included in bargaining units, exercise sufficient supervisory authority to be excluded, as supervisors, from the NLRA protections. The new NLRB is likely to attempt to limit the number of employees found to be supervisors under the NLRA.

Weingarten Rights. In IBM Corp., a 2004 decision, the NLRB held that nonunion employees do not have the right to have co-workers represent them in investigatory interviews where they reasonably believe the interview may result in discipline. The issue of whether such Weingarten rights apply in the nonunion context is one that has ping-ponged among variously composed Boards for many years.

E-Mail Policies. In 2007, in the Register Guard decision, the NLRB held that, absent a showing of discrimination, employees have no statutory right to use employer equipment for union organizing. Although much of the Register Guard decision was overturned by the U.S. Court of Appeals for the D.C. Circuit, the NLRB's main holding that employers have the right to prohibit all non-business use of e-mail systems is still in effect.

Graduate Students. In Brown University, a 2004 decision, the NLRB held that graduate research and teaching assistants are students and not employees who are entitled to unionize under the NLRA. Recent remarks by NLRB Chairwoman Liebman appear to invite graduate students to file a case so that the new Board will have a chance to overturn Brown.

Voluntary Recognition Bar. In 2007, the NLRB held in Dana Corp. that where an employer has voluntarily recognized a union, employees and rival unions still have 45 days after that recognition to file a competing petition to challenge it.

When you know change is coming, it is easier to be prepared. Lawyers from Ballard Spahr's Labor and Employment Group are available to discuss how to prepare and take proactive steps against what will be a much more favorable legal climate for unions and union organizing with the new additions to the NLRB.


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