Labor’s Next Best Hope: NLRB Rulemaking

by Dmitri Iglitzin

Dmitri Iglitzin

Labor’s number one legislative priority, the Employee Free Choice Act (EFCA), would enshrine the principle of majority signup (allowing workers to form unions based on a written showing of majority support), mandate binding arbitration for first contracts where the parties cannot agree and impose financial penalties on employers for firing pro-union employees. This could dramatically improve the ability of workers to unionize and improve their working conditions. An April, 2007 study by the Campaign for America’s Future estimates that passage of EFCA would increase private sector union membership by 10%, providing an additional 3,537,625 people with health insurance and 2,773,045 more people with pensions.

Yet EFCA is currently stalled behind health care and climate change legislation, and nobody knows when it might actually be considered by Congress, much less if it will be enacted in anything like its present form. In the face of that legislative inaction, it may be that the best available solution is for the administrative agency with authority in this area, the National Labor Relations Board (NLRB), simply to impose some badly needed fixes.

Most legal scholars believe that the NLRB has the authority to enact procedural changes that would, among other things:

• drastically shorten the time frame for holding the elections that determine whether or not a group of workers are entitled to unionize;
• eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;
• require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive; and
• require equal access to both workers and the workplace for unions during campaigns.

All of these changes, of course, are eagerly sought by unions and their supporters.

Traditionally, the NLRB has not exercised its rulemaking authority this broadly, but instead has impacted labor struggles by adjudicating disputes on a case-by-case basis. But the NLRB’s historical reluctance to make policy through “rules” rather than case decisions may soon change.

President Obama has nominated Democrats Craig Becker and Mark Pearce, as well as Republican Brian Hayes, to join the two sitting members, Wilma Liebman, a Democrat, and Peter Schaumberg, a Republican, on the five-member NLRB governing board. Thus, if and when these three new nominations are approved by the Senate, a majority of the members of the NLRB board will be Democrats.

And not middle-of-the-road, pro-business Democrats, like the financial gurus who have steered President Obama away from trying to implement any structural changes to the country’s economic and financial systems.

Liebman, formerly with the Bricklayers and Teamsters unions, is a long-time hero to organized labor for her eloquent dissents from numerous anti-labor decisions issued by the prior, “Bush” board. She has signaled her desire to overturn many of the NLRB’s recent major decisions. Pearce is also a long-time union advocate.

But it is not Liebman or Pearce who has business interests petrified, but Becker, who currently serves as Associate General Counsel to both the Service Employees International Union and the AFL-CIO. In Becker’s writings, he has argued that employers “should be stripped any legally cognizable interest in their employees’ election of representatives.” In May of this year, the Wall Street Journal called Becker “labor’s secret weapon,” and accused him of wanting to “rig the rules to favor unionization.”

Even if Liebman, Pearce and Becker do not pursue or achieve all of labor’s goals, an NLRB board in which they constitute a majority is likely to overturn a number of significant decisions issued by the previous board. They could, at a minimum, narrow the definition of who is considered a “supervisor” (and therefore has no legal protections under federal labor law), restrict an employer’s right to limit the use of company email systems for solicitation, restrict a company’s right to file a lawsuit against a labor organization, and increase the penalties on companies that violate their workers’ legal rights.

Due to opposition from business interests, none of the three new appointees have been confirmed by the Senate, which has left the NLRB with only Liebman and Schaumberg to serve as an often-deadlocked caretaker board. Sooner or later, however, Becker and Haye’s appointments will be voted on by the full Senate, and when that happens, they will undoubtedly be confirmed. At that time, there is reason to believe that much of what organized labor hoped would be accomplished through EFCA could be accomplished through the rulemaking power of the newly constituted NLRB board.

Should this occur, the right will denounce the NLRB for reforming the country’s labor relations scheme without Congressional authorization. On the left, there will be those who feel that by acting through administrative rulemaking, the NLRB will be giving Congress yet another excuse to avoid passing EFCA.

Should the NLRB act in this way, however, it will be remedying some of the worst features of the status quo, providing needed relief in the reasonably immediate future, rather than in the roseate, hypothetical post-EFCA world. That is a result that is either fervently sought or opposed by both those who favor, and those who oppose, giving workers the ability to organize and bargain collectively through unions to increase their market share of the American dream.

Dmitri Iglitzin practices labor law in Seattle, Washington, with the firm of Schwerin Cambell Barnard Iglitzin & Lavitt. He is a frequent commentator on issues of interest to unions and working people.