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Latest News - April 2010

April 7, 2010
Dem-Packed NLRB May Rush Through Pro Union Rulings
Author: Sean Higgins

After years of inactivity, the National Labor Relations Board is set to come roaring back. And everyone expects it to give Big Labor a new edge in its dealings with management.

Thanks to two recent NLRB recess appointments by President Obama, employers are bracing for new rules on workplace organizing efforts, including how and when the elections are held, which employees can be organized, what data must be turned over to unions during elections and what access they would have to workplaces.

Business could also face new restrictions on what they can tell employees during elections and new penalties that can be assessed for violating the NLRB rules, including mandatory unionization.
Backdoor Card Check?

Together, these would not be quite the same as the pro-union Employee Free Choice Act, also known as card check, that stalled in Congress last year, says Maurice Baskin, a labor lawyer with the firm Venable LLP. But they come close.

"I do think the biggest danger is that they would try to implement some sort of 'EFCA lite' by pushing the envelope in what the board can do," Baskin said.

Mike Eastman, the Chamber of Commerce's top labor lawyer, put it this way: "We're not holding our breath on any of the big, controversial cases."

A January article in the liberal Nation magazine said "there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB."

The NLRB is the federal entity that oversees business-labor relations, including the rules on workplace organizing. Until recently the five-seat board had only two members and lacked a quorum to act in most cases. Obama's new appointees give the board three Democrats. There's just one Republican, whose term expires in August.

Obama's nominees included Craig Becker, former top lawyer for the Service Employees International Union. Big Business fought bitterly against his appointment, and it stalled in the Senate.

Obama responded by installing Becker through a recess appointment, a procedure originally intended for emergency situations when Congress is not in session. A second, much less contentious nominee, Mark Pearce, was also recess-appointed.

This means that the terms of Becker and Pearce expire at the end of 2011, instead of the 5 year terms normally given to Senate-approved members.

No 'Right To Be Heard'

Becker raised eyebrows because Big Business said his law review articles indicate that he thinks management should have little or no say in workplace organizing.

"Employers should have no right to be heard in either a representation case or an unfair labor practice case," Becker once wrote.

Big Business expects a rush of activity once the new appointees settle in. A Chamber of Commerce paper for its members cited 53 NLRB rulings it believes could be overturned.

Those moves could happen at any time. Unlike the Supreme Court, the NLRB has no set session and can issue rules as well as respond to specific cases.

Current Chairman Wilma Liebman, a Clinton appointee later re-nominated by President Bush, has argued that the NLRB should engage in pro-active rulemaking rather than just waiting for cases.
Cases that business and labor groups expect to see action on include a pending petition by seven unions to require employers to bargain with unions that represent less than a majority of the employer's workers. Right now businesses need only recognize a union if it represents a majority.

Businesses also expect that the time between when a petition for a unionizing vote is accepted by the NLRB and when the vote is actually held could be shortened. Businesses have typically used this period, often months long, to try to dissuade employees.

Employers could also be forced to turn over employee contact information and give unions equal access to workplaces during organizing drives, says Steven Hill, director of the political reform program at the New America Foundation and co-author of the Nation article.

"The current rules are quite restrictive," he said. "They don't really allow unions to come onto workplaces without the permission of the employer."

Another potential reversal is the 2007 Dana-Metaldyne decision. In that case, the NLRB ruled that even after management has agreed to terms with a union, there can be a vote to decertify it if 30% of employees sign a petition.

The case involved a business agreeing to collective bargaining before employees had voted on unionizing. At issue was whether that was what the employees wanted or whether management was striking a special deal with the union. The NLRB gave the employees an out if they thought that management and the union had colluded against them.

"It said that if the union tries to do card check and the employer agrees and accepts card check then you have to notify the employees so they have an opportunity to demand an election," the Chamber's Eastman said.

The case is important because it involved a key aspect of card-check-style organizing: circumventing the traditional federally monitored NLRB election in favor of an alternate organizing method. Accepting it as a regular practice would get unions one step closer to card check.

A similar case, Dana Corp. and UAW, involving recognition of a union without an election, is also pending before the board.

"The UAW union went to the corporation and said ... agree to card check and we'll agree to limitations on wages and a no-strike clause in the contract," said Vincent Vernuccio, a Bush-era Labor Department attorney.

He added: "This isn't the workers saying they want a union, this is purely union officials negotiating with the company before the union represents a single worker."

Also cited by business as a potential reversal is the 2006 case of Oakwood Healthcare Center. The NLRB ruled that some nurses could not join a union because they were supervisors and therefore not covered under the Labor Relations Act.

Business fears that, if reversed, even those supposed to represent management could be unionized.
Another possible change is an expansion of what is called a Gissel order. This is used when the NLRB decides that a business acted so illegally in fighting an organizing effort that it orders the firm to bargain with the union. Rarely used, it could become more common under the new NLRB.

Organized labor is staying low key about Becker and potential changes at the NLRB.

"(I) don't think we're going to speak to specific cases that may or may not be taken up," AFL-CIO spokesman Josh Goldstein told IBD, "but (we) can say that we are looking to the NLRB for fair and well-reasoned decisions that recognize the basic purpose of the (National Labor Relations) Act to protect workers' rights to organize and bargain collectively."





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