Jottings By An Employer's Lawyer

Monday, September 14, 2009

The Obama Board - EFCA Is By No Means the Whole Deal

The Employee Free Choice Act has certainly garnered the majority of ink and/or pixels in discussions about the possible changes in the law of labor relations, but it is by no means the only change on the horizon. In fact, as has now become abundantly clear, EFCA is subject to the vagaries of the legislative process which is biased in favor of doing nothing. What form of legislation, if any, can pass remains a very open question.

One other question however was decided on the night of November 4, 2008. When President Obama was elected it was certain that within some period of time there would be an Obama National Labor Relations Board. Currently the Board is operating with two members, but three others have been nominated and when they are confirmed, there will be a 3-2 Democratic majority.

For a look into what that may mean, two of my Ogletree Deakins colleagues, the father/son duo of Hal and Chris Coxson, have prepared a monograph for the U.S. Chamber of Commerce, The National Labor Relations Board in The Obama Administration: What Changes to Expect.

According to the Chamber's press release announcing the report:

The purpose of this publication is to provide an overview of how the law administered by the NLRB is likely to change during the Obama Administration. The vast majority of this analysis is focused on cases decided by the Board in recent years that Democratic Members of the Board dissented to and that organized labor has criticized. While some of these cases are high profile, such as the Board’s decision in Dana/Metaldyne that effectively gives employees notice before a union and an employer can circumvent the law’s secret ballot process for union recognition, others are much less well known. However, reversal of these technical rules, such as whether permanent strike replacement workers may be hired on an at-will basis, as discussed in Jones Plastics and Engineering Co., collectively will increase union leverage in every aspect of labor-management relations.

In addition to the changes to existing precedent, it is also possible that for the first time since the 1974 rules relating to health care institutions, the Board may engage in substantive rule making.

You can download the full report from Chamber's website [pdf]. Happy reading.


I've known Hal for several years. His analysis is usually on target. I look forward to reading his report. Thanks for providing the link.
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