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Employer Concerns Renewed? NLRB Taking Matters Into Its Own Hands…

Since the election of President Obama, five little words – The Employee Free Choice Act – have been the source of question and concern for non-unionized employers everywhere.  The latest version of the Employee Free Choice Act, or EFCA, was proposed in March of 2009. (Text of bill.)  The bill’s lofty goal is to “amend the National Labor Relations Act to establish an efficient system to enable employees to form, join, or assist labor organizations, to provide for mandatory injunctions for unfair labor practice during organizing efforts, and for other purposes.” 

Those other purposes include things like requiring employers to begin bargaining within 90 days, compulsory mediation, and binding arbitration.  However, despite the President’s commitment to EFCA, the legislation has been sitting, virtually untouched, since March of 2009.  After the mid-term elections, EFCA, which was sponsored primarily by Democrats, seems to be on its way out, at least for now. Despite this piece of good news for non- and anti-union employers, recent National Labor Relations Board (NLRB) decisions seem to be expanding union boundaries even without the EFCA. 

Even though the NLRB cannot change the law, it can make case-by-case rulings and set administrative rules that give unions more leverage over employers.  For example, in one recent decision, the board ruled that a union practice of holding stationary banners at a secondary employer’s business to protect contractor work was legal.  The board focused on the fact that the banners weren’t a part of a marching picket line and therefore were not coercive.  Many view this ruling as expansive and a sign of change in favor of unions.  For other examples of pro-union NLRB rulings see the Wall Street Journal article “Labor Board’s Recent Decisions Tilt in Favor of Unions” by Melanie Trottman and Chris Maher.

How and whether NRLB decisions will have the same kind of effects that the EFCA could have remain to be seen.  But one thing is clear – employers are not out of the woods yet.



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