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President Obama Makes Key NLRB Appointments
On March 27, 2010, President Obama bypassed the Senate and made two recess appointments to the National Labor Relations Board (NLRB). These recess appointees will serve at least until the end of the next session of Congress—December 31, 2011.
President Obama appointed Craig Becker, the highly controversial Service Employees International Union (SEIU) and AFL-CIO attorney, whose nomination to the NLRB has generated widespread controversy and prompted strong opposition from employers. Republican senators came out strongly against Becker’s nomination by blocking Becker in a 53-33 cloture vote on February 9, 2010. Becker has worked as an associate general counsel for the SEIU since 1990 and as staff counsel for the AFL-CIO since 2004. He has taught and written extensively about labor law and his views have raised concerns that he would circumvent Congress by implementing portions of the proposed Employee Free Choice Act (EFCA) through NLRB decisions. Becker further believes that employers should have no role in union organizing campaigns and representation elections.
President Obama also named Mark Pearce, a New York labor lawyer and union side advocate, to fill the fourth seat on the NLRB. With these appointments, the NLRB—operating with a Democratic majority for the first time since 2001—is poised to reconsider several decisions from the last decade which are largely viewed as pro-management, including the following:
- Speed up Union Elections
As originally proposed, the EFCA would have made it easier to organize employees by amending the National Labor Relations Act to eliminate secret ballot union elections and replacing them with a card-check process. Reducing the time between an employee’s petition for a secret ballot election and the actual election itself—which is currently around 42 days—is widely viewed by attorneys as a move that would benefit organized labor and diminish an employer’s window of opportunity for making its case against organizing.
- Give the NLRA More Teeth
The EFCA also would have beefed up penalties for employers who ran afoul of the NLRA. Under the EFCA, employers would have had to pay up to triple back pay for employees found to have been fired over organizing activity. The pro-union bill also called for civil penalties of up to $20,000 for willful and repeated unfair labor practices. Becker and others might not put a similar penalty on violations because remedies are limited by the NLRA, but the Board could make granting union access to the workplace a routine remedy for employer transgressions. In the past, the NLRB has required some kind of access as a component of a remedy, but the Board may see giving unions the right to come in and make its case to workers to organize an effective, standard remedy. The NLRB could also strengthen remedies seeking injunctive relief under Section 10(j) of the NLRA to the Board’s regional directors. A 10(j) injunction allows the NLRB to issue temporary relief—such as ordering the reinstatement of a fired worker—without having to wait for a particular case to be litigated.
- Narrow the Definition of Supervisor
An employee who qualifies as a “supervisor” under the NLRA may be excluded from a collective bargaining unit and may be unable to vote in elections. The question of what exactly makes a given employee a supervisor has been heavily litigated, and the U.S. Supreme Court decided the issue in 2001 in NLRB v. Kentucky River Community Care. The Re-Empowerment of Skilled and Professional Employees and Constructions Trade Workers Act (RESPECT), which was introduced in 2007 but never became law, would have amended the NLRA to state that in order to qualify as a supervisor, employees must spend the majority of their time on supervisory duties. One possible change, according to current NLRB chairwoman Wilma Liebman—who dissented from a prior NLRB decision—may involving tightening the definition of supervisory status. However, even without a statutory change, the Obama NLRB could have an impact through its interpretation of terms such as “responsibly to direct.”
- Other possible changes that Obama’s Board could decide include:
E-mail Solicitation: In 2007, the NLRB found that an employer could lawfully bar employees from using its e-mail system for non-work related purposes unless the employer enforced the policy to discriminate against union activity. The Board specifically ruled that an employer does not need to permit union communication even if it allows communication for other personal matters, as long as the distinction made by the employer is not simply to prohibit union activity. Chairman Wilma Liebman dissented from this position, and her views likely are shared by recent appointees Pearce and Becker.
Weingarten Rights for Non-Represented Employees: In 2004, the NLRB overruled Clinton-era precedent to hold that the Weingarten right to union representation at an investigatory interview does not extend to employees who are not represented by a union. The Obama Board may reverse course yet again and allow nonunion employees to be represented by coworkers or others at a meeting the employee believes may possibly result in disciplinary action.
Now that union lawyer Craig Becker has been appointed to the NLRB, employers can expect a shake-up in Board law and rulemaking on several issues that should make it easier for unions to organize. I think all employers should be concerned, but especially those employers who are currently nonunion, particularly if they are the target of a union-organizing drive.