National Labor Relations Board Chair Liebman wrote in a March 2008 Journal of Labor and Society:

“The existence of a strong independent trade union movement is critical to a democratic society. Similarly, the system of collective bargaining … affords an effective mechanism to distribute resources and as such, it furthers a collective national sense of fairness …. Unquestionably, collective bargaining contributed to the expansion of the middle class, and the decline of organized labor is often linked to the decline of the middle class and growing income inequality.”

Chair Liebman’s writings, taken as a whole, along with her background as a union lawyer, clearly show her support for “the modernization” of our labor laws to further promote “fairness.” She has not, however, been able to place her mark on our laws. This is because Ms. Liebman either has had a minority or dissenting view on decided cases or been unable to act with the current two-person membership on the Labor Board.

Regardless of EFCA’s fate, a Labor Board with Ms. Liebman and Mr. Becker in the majority, over time, could radically change existing law to “encourage” collective bargaining. Indeed, it is not uncommon for Ms. Liebman to cite approvingly Mr. Becker’s writings to bolster her positions advocating “change.”

What will their agenda look like? Professor Samuel Estreicher of New York University School of Law has articulated it rather well. In his opinion — and we dare say, in the view of a majority of the new Labor Board and the Board’s new General Counsel, all of whom will be in place sometime in 2010 — expect the following based on the current National Labor Relations Act, without legislative change:

1.      Board elections to take place in 14 to 21 days after a petition is filed, depending upon the complexity of issues, instead of today’s 42-day target;

2.      Elections directed with the ballots of contested voters sealed until a post-election hearing is held;

3.      Voting through the Internet and by mail instead of at the employer’s premises;

4.      Greater use of rulemaking;

5.      A new, required poster explaining employee rights to organize with a model authorization card. One possible card would authorize union representation without an election;

6.      Some right of union access to employee premises to meet a new test of “laboratory conditions” for a “fair” election;

7.      Revised “Excelsior” list requirements for turning over names and addresses when, possibly, 30 percent of the employees sign union recognition cards instead of union authorization cards;

8.      Permission for a union and an employer to negotiate key terms of an agreement and publicize them in the absence of majority support;

9.      Expanded Labor Board requests for injunctive relief, including reinstatement, to remedy alleged unfair labor practices;

10. Imposition of negotiation timetables, payment of union bargaining expenses, and union access rights as remedies for “bad faith” bargaining; and

11. Labor Board advisory opinions that an employer’s bargaining conduct was in bad faith so any strike would prevent the hiring of permanent replacements.

EFCA may or may not be dead. The Labor Board, however, lives to re-interpret the statute another day. It’s only “fair.”