Traditional labor law in this country has essentially been a non-issue over the past decade. Today unions represent 12% of all American workers (7.4% in the private sector), down from a high of 35% in 1955. However, thanks to the recent dramatic shifts in Washington, this trend may soon be changing. Labor law in the private sector is governed, in large part, by the National Labor Relations Act (“NLRA”). The NLRA guarantees the right of employees to organize and to bargain collectively with their employers, and to engage in other protected concerted activity with or without a union, or to refrain from all such activity. The National Labor Relations Board (“NLRB”) is is an independent federal agency created by Congress to administer the NLRA. The NLRB, which normally has five sitting members, currently has only two current members. The Democrats have refused to confirm any of President Bush’s appointees, hoping that a Democrat presidential victory will lead to more favorable appointments. As such, President-elect Obama, who is openly pro-labor, will be called upon to appoint three members immediately, and will be able to influence significantly the Board’s agenda and decision making. The new Board is likely to revisit and overturn a number of important rulings. More importantly, the Board will play an important role in interpreting any new legislation that Congress might pass amending the NLRA, including the Employee Free Choice Act.
