Cover Story: Mid Term Report

Management-side labor attorneys are keeping a close eye on the National Labor Relations Board (NLRB) now that three of its four members have strong ties to organized labor (two seated by recess appointment when Congress stalled their confirmations). Many believe the NLRB will pick up the mantle dropped by pro-union members of Congress and implement much of the Employee Free Choice Act (EFCA) through regulation.

“We call it 'EFCA-by-Stealth,' coming in through the back door,” says Ken Yerkes, a partner at Barnes &Thornburg.

Alarm bells went off in June when the NLRB issued a Request for Information (RFI) on technology that could enable electronic voting in union representation elections. The RFI seeks information on secure electronic voting systems, raising fears of offsite elections allowing unions to manipulate votingand intimidate workers casting votes outside the workplace.

During a speech at the InsideCounsel/Fisher & Phillips National Labor Symposium in September, Former NLRB member Peter Schaumber, who had recently stepped down, dismissed suggestions that the RIF was not a step toward implementing offsite elections.

“To the extent it is suggested that this request for information did not intend to reach out to offsite electronic voting, that is plain misinformation,” Schaumber said. “I was there. The board will seek to augment union power during organizing campaigns.”

The board could also in effect implement EFCA through rules changes including shortening election timeframes, thereby reducing the time employers have to convince employees to vote against union representation, and granting unions more pre-election access to employees in the workplace.

“One reason some EFCA supporters in the Senate aren't pushing it is that they see it can happen through rulemaking,” Yerkes says.

Schaumber told the National Labor Symposium that a wave of pro-union decisions issued in late August just before his departure demonstrates the determination of the board to support union issues.

“The board has shown in these decisions a startling aggressive, results oriented agenda aimed at enhancing union power and making it easier to organize, regardless of board precedent,” he said.