Pro-Union NLRB Alarms Employers

In the article "Pro-Union NLRB Alarms Employers," from the August 2011 issue of InsideCounsel, Fort Lauderdale  Partner Charles Caulkins commented on the current shift to the left of the National Labor Relations Board (NLRB). The president appoints the board, with three members from his own party and two from the opposition party. The current board has four members—three Democrats and one Republican—with a vacancy in the fifth position. All three Democratic members have strong union ties, and two were given recess appointments when it appeared they would not be confirmed by the Senate. Subsequent proposed rulemakings and case decisions reflect a pro-union tilt. Charles said, "The NLRB has traditionally swung a pendulum back and forth depending on which party is in power, and that's historical back to the founding of the NLRB."

Michael Carrouth, a partner in the Columbia office, was also quoted in the article, which notes recent cases and proposed rulings by the National Labor Relations Board that side with employees. The board took what is considered to be a big step toward implementing procedures favorable to union organizing by proposing rules to significantly shorten the time between the filing of a petition for a union election and the date the election is held. Employers say that would diminish their ability to communicate the benefits of remaining non-union. They also contend the current time frame is reasonable: In 2010, the median time between petition and election was 38 days. Mike said: "Based on how the NLRB has considered such significant changes in the past, it is moving very quickly on this, and is not allowing proper time to consider and evaluate the impact of these proposed changes. In my opinion, they are acting in this manner because they know all the changes are aimed at assisting unions win elections, not ensuring the rights of employees are protected. Therefore, they do not want significant debate and review."