Unions & Labor Law Reform Blog : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

The Chairman’s statement could signal slower change than forecast – but don’t bank on it

For the first time in more than two years, the Board has clear quorum.  The question now turns to how the agency will exercise its authority. This is an issue of no small concern.  For an agency that is supposed to bring order and stability to labor-management relations, change and uncertainty are unsettling.  This is all the more true when its Chairman expresses seemingly conflicting intentions.

We have heard that the NLRB, now firmly in Democratic hands, would kick over the traces of the “Bush Board.”  In short order it would reverse precedents that were deemed inimical to organized labor and employees, some may say.  Chairman Wilma Liebman, herself, has signaled her eagerness to make changes.  Yet a close examination of her views suggests changes in Board law could take place more deliberately - maybe.  That two of the four members, Craig Becker and Mark Pearce, will owe their positions to Presidential fiat, rather than Senate confirmation, matters more to the Chairman, she professes, than many would allow. 

This is not the first time Ms. Liebman has been on a Board of recess appointees.  It happened in 2002.  Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.”  She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.” 

At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge.  Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this.  Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress.  This “EFCA-lite” likely would include:

• Rapid-fire elections
• Diminished ability for employees to receive information from management and make an informed decision
• Much earlier union access to employees names and addresses
• Access to employer premises for union organizers
• Restrictions on employers’  ability to communicate effectively with their own employees
• Union access to employer-maintained electronic technology
• Doubt created over the supervisory status of first line managers

Should the new “recess Board” fail to stay within the limited role the Chairman has espoused, an explanation certainly will be expected from her.  It may be called for sooner rather than later.   

Martin Payson also contributed to this article.

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National Labor Relations Board Chair Liebman wrote in a March 2008 Journal of Labor and Society:

“The existence of a strong independent trade union movement is critical to a democratic society. Similarly, the system of collective bargaining … affords an effective mechanism to distribute resources and as such, it furthers a collective national sense of fairness …. Unquestionably, collective bargaining contributed to the expansion of the middle class, and the decline of organized labor is often linked to the decline of the middle class and growing income inequality.”

Chair Liebman’s writings, taken as a whole, along with her background as a union lawyer, clearly show her support for “the modernization” of our labor laws to further promote “fairness.” She has not, however, been able to place her mark on our laws. This is because Ms. Liebman either has had a minority or dissenting view on decided cases or been unable to act with the current two-person membership on the Labor Board.

Regardless of EFCA’s fate, a Labor Board with Ms. Liebman and Mr. Becker in the majority, over time, could radically change existing law to “encourage” collective bargaining. Indeed, it is not uncommon for Ms. Liebman to cite approvingly Mr. Becker’s writings to bolster her positions advocating “change.”

What will their agenda look like? Professor Samuel Estreicher of New York University School of Law has articulated it rather well. In his opinion — and we dare say, in the view of a majority of the new Labor Board and the Board’s new General Counsel, all of whom will be in place sometime in 2010 — expect the following based on the current National Labor Relations Act, without legislative change:

1.      Board elections to take place in 14 to 21 days after a petition is filed, depending upon the complexity of issues, instead of today’s 42-day target;

2.      Elections directed with the ballots of contested voters sealed until a post-election hearing is held;

3.      Voting through the Internet and by mail instead of at the employer’s premises;

4.      Greater use of rulemaking;

5.      A new, required poster explaining employee rights to organize with a model authorization card. One possible card would authorize union representation without an election;

6.      Some right of union access to employee premises to meet a new test of “laboratory conditions” for a “fair” election;

7.      Revised “Excelsior” list requirements for turning over names and addresses when, possibly, 30 percent of the employees sign union recognition cards instead of union authorization cards;

8.      Permission for a union and an employer to negotiate key terms of an agreement and publicize them in the absence of majority support;

9.      Expanded Labor Board requests for injunctive relief, including reinstatement, to remedy alleged unfair labor practices;

10. Imposition of negotiation timetables, payment of union bargaining expenses, and union access rights as remedies for “bad faith” bargaining; and

11. Labor Board advisory opinions that an employer’s bargaining conduct was in bad faith so any strike would prevent the hiring of permanent replacements.

EFCA may or may not be dead. The Labor Board, however, lives to re-interpret the statute another day. It’s only “fair.”

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In response to the United States Department of Labor’s request for public comments on its proposed rulemaking implementing President Barack Obama’s Executive Order No. 13496, Jackson Lewis LLP, on behalf of its clients and other employers, has provided the Department with detailed comments and suggestions for improvements to the proposed rule. The Executive Order, signed January 30, 2009, requires covered federal contractors and subcontractors post a notice apprising employees of the right to unionize and to engage in certain protected activities under federal labor laws. It and the proposed rule could have a profound effect on federal contractors since a failure to comply with the posting requirement or with the terms of the notice could result in the loss of Federal contracts or debarment. (For more information on the Executive Order, see President Signs Three Pro-Union Executive Orders and DOL Proposes Regulations Clarifying Contractors' Obligation to Notify Employees of Right to Organize.) 

Jackson Lewis, one of the nation’s largest labor and employment law firms counseling federal contractors and others, submitted its comments on September 2, 2009. The full text of the comments may be accessed here (pdf). A summary of our comments follows:   

     NLRA Preemption - The Firm maintained the Executive Order is preempted by the National Labor Relations Act (“NLRA”), the nation’s principal labor relations law, to the extent it seeks to impose obligations and penalties on contractors and subcontractors beyond those already established by the NLRA.  

     Scope of Rule – The Firm objected to the Department’s attempt to make primary contractors responsible for compliance by their subcontractors. The Department should clarify that primary contractors have no obligation to police subcontractors, other than to adhere to specific enforcement directives of the Secretary. With respect to the obligation of primary contractors to place in subcontracts language requiring subcontractors to post the required notice, the Firm suggested the Department impose this requirement only on subcontracts valued in excess of $100,000. This amount is consistent with the minimum threshold applicable to primary contracts under the Executive Order. It would exclude subcontractors who perform minimal work from being subject to the Order’s obligations. 

     Limitations on Posting Obligation – The Firm recommended that the Department limit the posting obligation to cover only employees who perform work directly related to the performance of the contract. Further, the Firm suggested the Department expressly permit employers who post notices electronically and physically to post the required notice only physically. Electronic posting would cause the notice to be sent to the vast majority of employees who do not perform work related to the contract. Additionally, the Firm suggested the Department permit the required notice to be consolidated into commercially available “all-in-one” posters employers already use to comply with other federal and state law posting requirements.  

     Exemption for Employees Working on Contracts Outside the United States - The Firm suggested that the Department add an exemption to the proposed rule for employees working on contracts and subcontracts in foreign countries who are not subject to the NLRA. This exemption is modeled on a similar exclusion made by the Office of Federal Contract Compliance Programs (“OFCCP”) in the affirmative action context. 

     A More Reasonable Notice - The Firm urged the Department to adopt a shorter, more balanced notice. The Executive Order’s purpose is to enable employees to make informed choices regarding their right to unionize (or not unionize) and the proposed longer, more detailed notice may frustrate this objective by confusing and intimidating the reader. The Firm also pointed out specific concerns with the contents of the proposed notice. 

     Adjudication of Unfair Labor Practices - The Firm recommended the Department make clear in the final rule that the National Labor Relations Board will have exclusive jurisdiction to adjudicate disputes arising from alleged violations of the substantive notice. Such disputes would involve rights conferred by the NLRA, which the Board administers.  The Firm pointed out the possibility of conflicting decisions and wasted government resources. 

     Reinstatement After Debarment - Finally, the Firm recommended improvement of the debarred-contractor reinstatement process.  To promote transparency, we suggested the Department incorporate the reinstatement guidelines contained in other laws regulating federal contracts that call for written decisions explaining why a reinstatement request was granted or denied.

No date has been set for the issuance of the final rule.

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President Obama sent his nominations for the three empty seats on the NLRB to the Senate on July 9, 2009. One of the three, Craig Becker, is currently the Associate General Counsel for the Service Employees International Union (SEIU). Although Mr. Becker has much labor law experience, he has some extreme ideas for reforming labor law, many of which would involve stripping employers of many long-established protections.

In 1993, Mr. Becker wrote an article for the Minnesota Law Review, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495 (Feb. 1993), in which he claims that the current union election process is flawed and proposes  wholesale changes to fix them.

For example, Mr. Becker proposes that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” This would m ean an employer would lose its right to participate in hearings before the Board to resolve issues related to the election, or even to have an observer present at the election, among other things. Mr. Becker proposes eliminating the 72-year-old mandate of the Taft-Hartley Act that the Board certify unions based only on the results of an NLRB-supervised secret ballot election. Mr. Becker also proposes restricting, and in some cases eliminating, an employer’s “free speech” rights during an election campaign, although the right is spelled out in the Act.  In short, Mr. Becker would go further than even EFCA .

What is most disturbing, back in 1993, Mr. Becker, then writing as an academic, suggested that many of his drastic “reforms” could be accomplished through the Labor Board’s re-interpretation of the Act. He would sidestep legislation while kicking over the traces. Now, Mr. Becker is poised to take his seat on the Board where he could try to effectuate his ideas.  

We do not know whether the Senate will conduct hearings on Mr. Becker’s nomination before voting on his confirmation, although the U.S. Chamber of Commerce, on July 24, requested the Senate Health, Education, Labor and Pensions Committee do exactly that. R. Bruce Josten, the Chamber’s executive vice president for government affairs, said, in a letter to HELP’s chairman and ranking member, that SEIU “has a record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of secret ballot elections.” He cited SEIU's “intense advocacy” of the proposed Employee Free Choice Act and said Becker might attempt through Board decisions to impose card-check certification and “the effective elimination of secret ballots.”

In early-August, a Republican staffer reportedly said Senator Michael B. Enzi (R-Wyo.), HELP’S ranking member, wants a hearing on all three NLRB nominees. However, HELP so far has not announced any plans for a hearing and has not yet scheduled a vote.

We will keep you advised as the confirmation process progresses.

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