EFCA Battle Moves to the NLRB

A new four-member National Labor Relations Board (NLRB) may foretell significant operational changes for health care employers.  Amid controversy and unprecedented opposition, President Obama in March 2010 announced the recess appointments of two Democratic nominees, Craig Becker and Mark Pearce, to the National Labor Relations Board.  Craig Becker, referred to as “labor’s secret weapon” by the Wall Street Journal, served as associate general counsel for both the AFL-CIO and the SEIU.  Similarly, Mark Pearce represented unions for his entire legal career.  Notably absent from the recess appointments was the Republican nominee, Brian Hayes.  Becker and Pearce were sworn in the week of April 5, 2010.  Democrats now hold a 3-1 majority on the Board, and there remains one vacancy. 

Health care employers are bracing for change.  While the Employee Free Choice Act (EFCA) stalled during the protracted health care reform battle, the Democratic-controlled Board is expected to rely on its rule-making authority to accomplish much of what EFCA is designed to do without Congressional action.  For example, the Board may adopt rules shortening the election period, limiting the ability of employers to have observers at the polls and removing union elections from work sites.  In addition to rule-making, the Board is expected to issue decisions that will make it easier for unions to organize in health care institutions by reviving pre-existing precedent that allowed pro-union supervisors to solicit union authorization cards and expanding union access to employer property and employer e-mail for organizing activities.  All of these changes would not be good news to health care employers already targeted by organized labor.

While the fate of EFCA is uncertain, the current state of labor law is likely to change significantly given the composition of the “Obama Board.”  These changes will affect both unionized and non-union health care employers.  For more information on this issue as well as some proactive steps employers should consider, see Littler’s Insight article, The Obama Board Takes Shape:  Dramatic Changes May Be on the Horizon for Employers.

This entry was written by Carie A. Torrence.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.