The National Labor Relations Board started 2002 with just two members on the five-member board, leaving it unable to issue decisions or take other official action. However, two recess appointments made by President George W. Bush on January 23, 2002 gave the NLRB a Republican majority for the first time since November 1993. While the recess appointments bring the Board up to four members, all four will leave office by December 2002 unless they are reappointed by the President or confirmed for regular terms. Hopefully, confirmation of a full complement of NLRB members will occur this year. In any event, with a Republican-majority in place, the Bush NLRB can begin to address correcting the pro-union tilt that characterized the NLRB throughout the Clinton years. After years of imbalance at the NLRB throughout the Clinton Administration, it is hopeful that the Bush NLRB will restore confidence in the NLRB's decision-making ability. This article provides a summary of the issues that the Bush NLRB may address.
The year 2001 was a harrowing odyssey for employers that, at the beginning of the year, had hoped that a change in administration would bring a correction of the pro-union tilt that had characterized the National Labor Relations Board (NLRB) throughout the Clinton years. However, a Democratic majority continued to churn out controversial decisions well beyond the inauguration of President George W. Bush. With Republican Chairman Peter Hurtgen gaining a long-awaited Republican majority in 2002, (1) employers can hope for a new balance. While the NLRB's agenda will by necessity be shaped by the cases brought before it, a preview of the kinds of changes that can be expected is provided by a review of the controversial decisions issued by the Democratic-majority NLRB of the Clinton era. One may speculate that many of these cases would likely have gone the other way under a Republican-majority NLRB. In addition, the Bush NLRB will address important issues that have arisen as a result of significant changes that have occurred in the workplace. Many of these issues have not previously been decided by the NLRB but will have a profound impact on today's workplace. Ultimately, upon later review of all of the issues decided by the Bush NLRB, one can hope that some balance was restored that was lost during the Clinton era--an obviously difficult period of time for a management representative.
POSSIBLE REVIEW OF CLINTON NLRB DECISIONS THAT IGNORED ESTABLISHED LAW OR SET NEW STANDARDS
Some of the more controversial rulings of the Clinton NLRB dealt with: (1) employee free choice; (2) temporary employees; (3) Weingarten rights; (4) withdrawal of recognition; (5) secondary activity; (6) discrimination; (7) employee involvement; and (8) union organizers' access to property. A summary of the cases decided by the Clinton NLRB on each of these issues and a discussion of the prospects for review by the Bush NLRB follows.
Employee Free Choice
In recent years, the NLRB has increasingly confronted the issue of whether a group of employees is entitled to a secret ballot election on whether to be represented by a union. This question not only arises in cases involving card check recognition but also where a union seeks to add ("accrete") a group of unrepresented employees to an existing bargaining unit already represented and where a group of employees seeks to rid itself of union representation through a decertification election. During the Clinton NLRB, the Board issued several decisions either reversing existing Board precedent or establishing new standards that impact employee free choice under the National Labor Relations Act (NLRA). These decisions favored the interests of the bargaining representative or a preference for collective bargaining agreements over the expression of employee free choice. It is hopeful that the Bush NLRB will conclude that employees' exercise of their Section 7 right to select a union representative of their own choice or to have no union represent them at all is of paramount importance. The Bush NLRB may revisit several Clinton NLRB decisions that involve employee free choice.
In St. Elizabeth Manor, Inc., 329 NLRB No. 36 (1999), an employer initially recognized a union in a successorship context but filed a petition three months later challenging the union's majority status. Following existing NLRB precedent established in Sound Contractors, 162 NLRB 364 (1966), the regional director found no bar to the processing of the petition and directed an election. In a 3-2 decision, the Board reversed and held that the union was entitled to a "reasonable period of time to negotiate a contract." (2) In adopting the "successor bar rule," the Board majority analogized the case to the situation where there is voluntary recognition and where the union is given a reasonable time to negotiate before any challenge to its majority status can be mounted. The Board majority reasoned that there is a need to protect the bargaining relationship and the previously expressed majority choice against the "stresses of the organizational transition" that might have affected employee support for the union. (3)
However, the holding in St. Elizabeth frustrates important rights under the Act. Successorship should not be equated with voluntary recognition. When voluntary recognition has been extended, the rationale for barring challenges to the union's majority status has been that time should be given to allow the collective bargaining process to work as newly recognized unions need time to establish themselves among their new membership. With a successor, however, the employees already have experience with the collective bargaining process and the union has established a "track record familiar to the unit employees." (4) Thus, the desire to challenge the union's status in this setting should not be ignored. The Bush NLRB has already decided to revisit the holding of St. Elizabeth. The Bush NLRB has already granted requests for review in four cases to consider the issue of …