Ronald Meisburg: What to Look for from the New NLRB

Former Board Member and General Counsel predicts NLRB actions in the near future. Ronald Meisburg, a management-side labor lawyer who has served both as an NLRB Member and as NLRB General Counsel, testified last week at the Senate HELP Committee. [Full text of testimony]

Meisburg' predictions, in a nutshell:

  • Rulemaking on representation elections: The Board's efforts were partly scuttled due to controversy over the President's purported recess appointments, and now the Board wants to move forward.
  • Protected concerted activity: The Board will continue to expand what constitutes protected concerted activity, especially in cases involving new and evolving technology and new ways of organizing work.
  • Interference, restraint, and coercion:  There is more to come in the area of outlawing confidentiality instructions to employees during workplace investigations, and rules requiring off-duty employees to get permission to return to the employer's property.
  • Non-employee access to employer's property: In Roundy’s Inc., the Board invited amicus briefs (back on November 12, 2010) on questions involving allegations of employer discrimination in allowing and disallowing non-employee access to the employer's property.
  • Defining appropriate bargaining units: Two cases are pending that involve less than "wall-to-wall" bargaining units in department stores. One involves solely the cosmetics department; the other involves solely the women's shoes department.

Mr. Meisburg points out a number of reasons why most of these moves bring displeasure to employers, and why some rest on shaky theories, but it seems clear to me that the current Board will continue to march in a pro-union and pro-employee direction.

Mr. Meisburg is a frequent contributor to Labor Relations Update, a blog published by the Proskauer law firm.