The Fall NLRB Season

The raft of recent pro-union decisions from the National Labor Relations Board (NLRB) garnered praise from workers' rights advocates, including the Prospect's Harold Meyerson. But don't expect the board's pro-union streak to last long enough to undo years of Bush-era rulings making it risky for workers to organize.

Last week also marked the end of Chair Wilma Liebman's tenure, bringing the board, which typically comprises five members but currently has a vacancy, down to three members. In January, another Democratic appointee, Craig Becker, will step down, leaving a deadlocked board that can't do much of anything anyway (according to a 2010 Supreme Court ruling, New Process Steel v. NLRB, a two-member NLRB can't make decisions even if both members agree).

Over the past months, the GOP has escalated attacks on the NLRB as a rogue job-killing agency, and Republicans' willingness to use procedural tactics to block even recess appointments further raises the likelihood that once the pro-labor majority reaches its January expiration date, the board could be left to languish until the next presidential election. Although President Barack Obama inherited an NLRB with three vacancies, it took 14 months for him to fill any of them, due to a familiar combination of Republican obstruction and Democratic hesitance. Since then, "they've been playing defense," says law professor and former NLRB attorney Jeff Hirsch, "and I don't fault the board for that because they haven't had a lot of time." Come January, "I would be stunned if they actually get a third member on," he adds. AFL-CIO President Richard Trumka says Republicans are trying "everything they can to prevent the NLRB from actually doing what it's intended to do." That means the opportunity for progressive NLRB decisions this fall will be the last one for a long time.

The most prominent case facing the NLRB is a complaint against the global aviation company Boeing alleging illegal anti-union retaliation -- though that case may not reach the full NLRB in time for a ruling this fall. While that case has great significance, a pro-labor ruling would only affirm current law. In other areas, pro-labor rulings could shift case law to the left. Here are three decisions to watch.

The board will soon vote on proposed new rules about the timing of union-recognition elections. Managers and consultants often use spurious legal challenges to control the timetable for elections. That strengthens the anti-union arsenal -- with both tactics that are legal, like mandatory anti-union meetings, and those that aren't, like firings of union activists. Under rules the board proposed in July, most such challenges would be resolved after an election, reducing the time between when workers file a petition calling for an election and when they get to vote. As the wait for an election increases, so do charges of illegal anti-union tactics, according to Erin Johansson, research director of American Rights at Work. The last round of public comment on the proposed new rules ends today. The new rules would not resolve the issues with NLRB elections that have led many of the fastest-growing unions to pursue alternatives. But they could mitigate them.

Union organizing could also be affected if the board acts to defend other rights of nonunion workers. The NLRB invited briefs this summer regarding whether employers are violating the National Labor Relations Act when they enforce mandatory arbitration clauses preventing groups of employees from suing them. An NLRB ruling that enforcing such clauses is illegal could help revive class-action lawsuits, which were dealt a body blow by an April Supreme Court decision preventing state laws from protecting such suits. "The only way the Fair Labor Standards Act can work is class actions," says University of Texas law professor Julius Getman. The board could also choose to review and reverse the Bush NLRB's 2004 decision that ruled Weingarten rights -- the right to bring a co-worker into a disciplinary meeting with management -- apply only to union members. Either of these decisions could aide organizing: Protecting the Weingarten rights of nonunion workers would offer an additional way for workers organizing for union recognition to start acting like a union; reviving class-action rights would strengthen a tactic for unions to pressure anti-union employers.

Expect at least one NLRB decision this fall that reduces the number of workers excluded from the protections of the National Labor Relations Act. The board has indicated that it will rule on the legal status of graduate students paid "stipends" by universities to teach undergraduates or conduct research. Many public universities recognize and negotiate with graduate-student employees' unions; no private-sector universities do. Private-sector graduate students won the right to legal recognition in a 2001 NLRB decision under the Clinton majority, only to see the decision reversed under Bush in 2005 -- at which point New York University, the first private-sector school to recognize a graduate-student union, withdrew union recognition. The NLRB could also take up and reverse Bush board decisions that make it easier for management to deny organizing rights to other groups of workers by declaring them supervisors, temps, or independent contractors. Though repeal of all these rulings would affect fewer workers than the change of election schedules, it would open up the possibility of legal union recognition for workers who could otherwise be barred from it. Johansson says that these exclusions together may deny "millions of workers" organizing rights (extending organizing rights to groups explicitly left out of the National Labor Relations Act, on the other hand, would require legislative change).

Pro-labor NLRB decisions in any of these areas could -- and likely would -- be appealed or challenged in federal court. But each is an opportunity for the board to make an impact this fall before it faces a winter of potential paralysis.

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