Legal Commentary

Thanks to Dan and the gang for having me back again. I?ll start with a question that I?m asking my colleagues. How do you think the Obama administration will affect/change the area of law that you follow most closely?

I want to start this as a descriptive, not normative, exercise: predicting the most likely things to happen, rather than hoping for or bemoaning possible changes.

I?ll start, and I?ll limit myself strictly to labor law. I hope others will discuss employment law and employment discrimination). And I?ll only be descriptive here (although I?ll blog later with my own thoughts on, e.g., EFCA).

1. Most famously in the labor word, the Employee Free Choice Act (EFCA) is on the table. In short, EFCA would do three things. First, it would require employers to recognize a union if the union had signed cards demonstrating support for the union from a majority of relevant employees. Current law allows employers to recognize unions on this basis but does not require it. Second, EFCA would significantly stiffen the penalties and remedies for employer violations of the National Labor Relations Act (NLRA) during union organizing campaigns. Third, in cases where new unions and employers could not agree to a contract after a specified period of time, EFCA would allow outside arbitrators to decide on contract terms (similar to what is done in a number of public sector jurisdictions under state laws).

Prediction? The National Labor Relations Act is famously hard to reform. The last really big amendment to the NLRA was in 1959. As I tell my students, in my lifetime there has been one relatively minor set of amendments to the NLRA and one relatively minor playoff victory by the Detroit Lions. While NLRA reform in the couple of years is more likely than the Lions winning a playoff game, both are very rare events. People who care about the NLRA care passionately, and both sides have significant clout. I??ll say something like EFCA will be enacted, but maybe without the card check part. Again, as to my own views on the merits of EFCA, stay tuned, this is just the prediction part.

2. Changes via the case law of the National Labor Relations Board (NLRB). The "Bush Board" earned a reputation as being pretty darn radical in favor of employers.

I expect reversals on quite a few labor law doctrines, far too many to list here: greater rights for unions to use employer e-mail systems (pursuant to a broader view of what counts as "anti-union discrimination)"; holding that graduate student assistants are often "employees" under the NLRA; a somewhat narrower definition of who is excluded "supervisor" under the NLRA; reinstating the right of employees in non-union workplaces to have a co-worker present at a disciplinary investigation; reinstating previous law as to the protections from decertification unions recognized through voluntary card-check procedures receive; and, well, lot of other stuff. I tell my students that I could give the same labor law exam I gave eight years ago and half the answers would be different. That?s only partly hyperbole. But maybe in another four years I would be back to the original answers. It?s more of an open question whether the Obama NLRB will be equally aggressive in making entirely new, more pro-union rules, and if so, on what specific fronts.

3. Reversing Bush?s attempts to limit or eliminate collective bargaining by wide swaths of federal employees. From before 9/11, to moves after 9/11 at the DHS and DoD, up to literally this week, the Bush administration has long been keen to try to eliminate or greatly limit the pre-existing rights of many federal employees to bargain collectively. In some cases the administration succeeded in the limitations (TSA, DoD); in one major case (DHS), a court struck down the administration?s plan. I predict Obama will not see removing union rights from employees as a necessary part of the war on terror, and will reverse the Bush administration rules.

But enough from me. How will the Obama administration change the law in your area?