WASHINGTON -- Unions, uncertain about the outcome of their push for Congress to overhaul national labor law, are counting on President Barack Obama's new appointees to the National Labor Relations Board to reverse Bush-era rulings they say hamper their efforts to organize workers, according to the Wall Street Journal.
The five-member board, which supervises union elections and referees disputes between private-sector employers and employees, has a new chairman and Mr. Obama has nominated two new members with union backgrounds. The Senate must ratify these nominations, as well as a Republican nominee who has yet to be named.
Law firms are advising corporate clients to be on alert. If confirmed by the Senate, the two new board nominees -- labor-side lawyers Craig Becker and Mark Pearce -- would join longtime member and chairman Wilma Liebman to create "a majority bloc distinctly in favor of expanding the rights of unions and workers," law firm McKenna Long & Aldridge LLP said in a report addressing issues likely to be revisited by the NLRB. "Employers mustprepare for the resulting shifts in the regulatory landscape."
Once new nominees are in place, the board will face a lengthy agenda of issues including: whether more workers whose jobs fall in the gray area between salaried management and hourly laborers should be allowed to unionize; how much freedom workers should have to use company email systems to promote union membership; how much access union organizers should have to workplaces; and what constitutes unacceptable intimidation by employers seeking to oppose union organizing drives.
"I think we can predict that the landscape will change as quickly as cases get to the board where they can overrule" precedent, said Ken Yerkes, chairman of the labor and employment practice at Indianapolis corporate law firm Barnes & Thornburg LLP.
Ms. Liebman, a former legal counsel to the Teamsters and Bricklayers unions, was named as chairman by Mr. Obama to replace the Bush-appointed chairman, who remains on the board. First appointed to the board by President Bill Clinton, Ms. Liebman later became known as the board dissenter when Bush appointees dominated.
In an interview, she said the board "can enforce the law more vigorously" but is bound by constraints of the law it was created to administer and enforce.
That law, the 74-year-old National Labor Relations Act, was designed to protect the rights of workers and employers and guarantee employees the right to unionize and bargain collectively with management.
Ms. Liebman said she is "agnostic" on the proposed Employee Free Choice Act, the labor-backed proposal in Congress that would make it easier for unions to organize workers without secret ballot elections as well as give federal arbitrators authority to impose contract settlements in cases where labor and management can't conclude deals.
The act, opposed by business groups, is stalled for a lack of votes in the Senate, although former holdout Sen. Arlen Specter (D., Pa.) is talking with several lawmakers about a compromise proposal that might be passable.
Mr. Becker, counsel to the powerful Service Employees International Union, has argued that unionizing rights should cover more workers and wrote an article titled "Better Than a Strike: Protecting New Forms of Collective Work Stoppages under the National Labor Relations Act."
Mr. Pearce is a founding partner of a union-side law firm, whose Web site says unions are "frequently" faced with employers who try to dissuade employees from exercising their right to unionize.
John Sweeney, president of the AFL-CIO, has endorsed the two nominees, saying they understand "the need to restore balance" to the NLRB. The U.S. Chamber of Commerce's chief legal officer, Steven Law, said the group will urge the Senate to carefully review Mr. Becker's nomination because of essays in which "he infers that employers really have no legitimate role to play in the organizing process." That position "seems inconsistent with the spirit of the law if not the letter," he said.
The NLRB, established in 1935, is a legacy of a time when the U.S. economy was more dependent on manufacturing and heavy industry, and industrial unions such as the United Auto Workers were pushing to gain power representing millions of blue-collar factory workers.
Globalization and a shift away from manufacturing have coincided with sharp declines in union membership. Unions represent about 12 percent of U.S. workers, down from 20 percent in 1983, the earliest comparable data available.
Unions complain that the National Labor Relations Act doesn't give the NLRB enough power to sanction companies that violate the rules governing union organizing, and say the board takes too long to resolve cases.
They also say that once a petition is filed for representation the NLRB takes too long to hold an election, allowing time for employers to intimidate workers from joining the union.
Employer groups say the relevance of unions has declined in the modern-day economy and insist most employees don't want to join one.
Last year, about 400,000 private-sector workers joined unions, boosting membership to 8.24 million while leaving 98.8 million unorganized, said Cornell University labor expert Kate Bronfenbrenner.
(This item appeared in the Wall Street Journal June 3, 2009.)
