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A long-anticipated shift in power at the National Labor Relations Board has experts predicting the reversal of a slew of labor law decisions in the not-too-distant future. Well into the second year of his term, President George W. Bush has finally cobbled together a slate of nominees for the influential panel that oversees labor disputes. Federal law calls for the party in the White House to control three of the five seats and the opposing party to control two. Although NLRB appointments have never been a high priority for any new administration, President Bush has taken a particularly long time to assemble a package of nominees. In May, the president nominated Robert J. Battista, a partner at Butzel Long in Detroit, for chairman of the board and the first Republican spot, and Peter Schaumber, a labor arbitrator in Washington, D.C., for the second Republican spot. Republican Alex Acosta and Democrat Dennis P. Walsh, both named by the president last fall, are the candidates for the third and fourth vacant spots. The fifth seat is held by Wilma B. Liebman, a Democrat whose term expires at the end of the year. Should the Senate confirm the slate, it will be the first time in 10 years that Republicans have controlled the NLRB. Once the new board is in place, labor lawyers said they expect several controversial Clinton-era rulings to fall. “We will see significant changes,” said Kenneth R. Dolin, who chairs the labor and employment group at Chicago’s Jenner & Block. “At a minimum, it will go back to the way it was before the Clinton board.” Management-side lawyers such as Dolin said they looked forward to having “the shoe on the other foot.” Many chafed under the leadership of the Clinton board, which Dolin described as “the most pro-union board in a very long time,” reversing long-standing precedent in a number of cases. William Gould, the NLRB chair from 1994 to 1998, and now a professor at Stanford Law School, took issue with this characterization. He said the Reagan NLRB, especially in its early years under Donald Dotson, was the activist board. “If there is one thing that I’m proud about during my four years on the board is that we brought it back to the center,” he said. Charles Craver, a professor at George Washington University National Law Center, backed up Gould. “The board is like a pendulum inside a grandfather clock — it can only go so far,” he said. “You’re never going to have a socialist on the board.” He noted that over 75 percent of the decisions of the Clinton NLRB have been affirmed by various courts, on a par with the affirmance rate of past boards. But he conceded that the Clinton board had a more expansive view toward labor law coverage just as the new Bush board could be expected to trim it back. “These are political boards,” he said. MAJOR RULINGS AT RISK One thing all observers seem to agree on is that the new board was likely to reverse a number of major rulings of the Clinton board. On top of most lists is a 2000 decision called Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 173, which extended to nonunion employees the right to have a co-worker present at a meeting that might result in disciplinary action. “That case is living on borrowed time,” said John D. Canoni, chair of Nixon Peabody’s labor and employment practice. It is an issue on which the board has flip-flopped several times over the last two decades, and probably would again, he said. Dolin described the decision as “a trip wire for unwary nonunion employers,” who typically do not monitor NLRB decisions. Better informed employers are reacting to the ruling by simply dispensing with the investigatory interview altogether, he said. Craver countered that the burden imposed on management was minimal, since it does not have to tell employees of their right to bring a co-worker. He suggested too that the protection the ruling affords is especially valuable to nonunion workers since they do not have a union to look out for them. Another decision that is not long for this world, experts said, is Boston Medical Center, 330 NLRB No. 152 (1999), which found medical interns, residents and fellows to be employees having the right to organize. Craver said he thought the decision went the right way — in his view, interns and residents have always been “slave labor.” He added that the ruling has already had an impact. Last week, after years of ignoring complaints about the insane hours typically put in by medical residents, the American Medical Association endorsed a new 80-hour-a-week work limit, a reform Craver said was prompted in part by the decision. But he and others agreed that, nonetheless, the case is ripe for reversal by a Republican board. A related ruling, New York University, 332 NLRB No. 111 (2000), which recognized graduate students as employees, also looks vulnerable. With similar cases involving Columbia and Brown Universities pending before the board, universities “have their fingers crossed,” Canoni said. A fourth ruling on the NLRB radar screen, M.B. Sturgis/Jeffboat Division, 331 NLRB No. 173 (2000), permits temporary employees mixed in with regular employees to join a collective bargaining unit if the two groups share a “community of interests.” The increased use of temps in the workplace make this “a really big decision,” Craver said. Although ostensibly a pro-union decision, he said the case was actually a “double-edged” sword, since temps are typically not union-friendly. Charles Cohen, a former NLRB member who is now a partner at Morgan Lewis & Bockius in Washington, D.C., said he thought Sturgis seemed vulnerable. But, he added, Tree of Life, Inc. d/b/a Gourmet Award Foods, 336 NLRB No. 77 (2001), looked even more susceptible to reversal, since it extended the Sturgis doctrine “to the ultimate power,” finding temporary employees did not just have the right to join, but were automatically included in, a collective bargaining unit. Other cases that labor experts have tagged for possible reversal include St. Elizabeth Manor, Inc., 329 NLRB No. 31 (1999), which prevents employees whose company changes ownership from decertifying a union for a period of time thereafter; San Diego Gas & Electric, 325 NLRB No. 1143 (1998), which adopted a new mail ballot election rule; and Mississippi Power & Light Co., 328 NLRB 965 (1999), concerning the supervisory status of certain types of employees. BACKLOG OF CASES Labor lawyers expressed hope that a new board would also address another major concern: the backlog of cases that been building over the last year. Under Gould’s leadership, he said the board managed to get the backlog down to the lowest level on record. But administrative foot-dragging has forced the board — and labor lawyers and their clients — into a holding pattern. Three of the four spots — one seat is vacant — are currently filled by recess appointees, who are typically reluctant to take on any serious questions of law, said Daniel J. Ratner, a union-side lawyer with Levy Pollack Ratner & Behroozi in New York. “You’d think you would see some movement, but you haven’t,” Jenner & Block’s Dolin said of the interim board, which has three Republicans sitting on it. He added that he had a number of cases before the board that have yet to be decided. He predicted that soon would change. “When these new members come in, you’ll start seeing reversals,” he said.

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