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

Under its current arbitration deferral policy, the National Labor Relations Board, to encourage collectively bargained dispute resolution, would defer a final determination in certain unfair labor practice (“ULP”) charges when the grievance can be processed through the parties’ grievance or arbitration provisions under their collective bargaining agreement (“CBA”).  The Board’s Acting General Counsel has urged the Board to change its arbitration deferral policy, claiming it is “overly deferential” and not sufficient to protect employees’ organizing and collective bargaining rights under Section 7 of the National Labor Relations Act.
 
In his January 20th memo (GC 11-05), Acting General Counsel Lafe E. Solomon would require employers (as the presumed proponents of deferral to an award) to show the CBA had the Section 7 statutory rights incorporated in it or that the parties submitted the statutory issue to the arbitrator AND the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issues.

If the employer clears those hurdles, it will still have to show it is not “clearly repugnant” to the NLRA, i.e., the result is not palpably wrong or susceptible to an interpretation inconsistent with the Act.
 
Solomon’s new principle also would be implicated in NLRB approvals of pre-arbitration grievance settlements in certain ULP cases (the parties must have intended to settle the ULP charge as well as the contractual grievance).  The NLRB regional offices are directed to investigate the ULP charge, at least to the extent of taking affidavits from the charging party (“CP”) and the CP’s witnesses, and to determine whether the charge has “arguable merit” before deferring to an arbitrator.  When the award is issued, and a party urges deferral to it, the Regional Office is to examine whether the proponent has satisfied the three new criteria, make its determination, and submit the case to the agency’s Division of Advice.

Of course, if the arbitrator upholds the grievance, directs reinstatement and full back pay, and the CP requests withdrawal of the charge, the request can be approved.  If the CP refuses to withdraw, the case still will go to the agency’s Division of Advice.

Now that the NLRB regional offices will dissect arbitration awards regularly, will the unions be filing ULP charges with every discharge grievance?

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The National Labor Relations Board’s union-boosting has taken a new and troubling turn…repudiating the will of voters who would make unions show by secret ballot that they really represent employees.

The NLRB has threatened four states, whose voters passed initiatives last year barring employers from recognizing unions except following a secret ballot election, with lawsuits claiming the state measure are preempted by the National Labor Relations Act.  The Board’s Acting General Counsel, Lafe E. Solomon, on behalf of the agency, on January 13 notified the attorneys general of Arizona, South Carolina, South Dakota, and Utah that the measures would run afoul of the federal statute’s preemptive authority in the field of labor relations.  Solomon opined, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the amendments create] an actual conflict with private sector employees’ Section 7 [NLRA] right to representatives of their own choosing.”  Expressing concern that employers, under pressure from state law, might refuse to recognize — or withdraw recognition from — unions “lacking an election victory,” or that represented employees might bring actions under the new requirements against such unions and their employers asserting violations of state constitutional rights, Solomon asked the attorneys general to consent to a judicially approved stipulation that the measures are unconstitutional.  He has given the states two weeks to respond.  After that, he said, he will file suit.

This latest step by the pro-union agency is both unsurprising and unsettling.  The state ballot measures were intended to head off the “card-check” provisions of the Employee Free Choice Act (EFCA).  Little wonder, then, that this Board, seemingly with the goal of achieving the unfulfilled “promise” of EFCA, should attack these initiatives head on.  Unions would have to earn representation by secret ballot.  Goodness! How could employees ever be expected to vote for a union after their employer weighed in on the issues?

So much for faith in democracy.

The Board views its mission as one to revive and expand unionism. From its members’ perspective (most of them, anyway) no straight-thinking employee ever could oppose unionization.  And so, it proposes to sweep away “obstacles” to representation that most citizens agree are necessary to assure employee free choice. 

The Board is mistaken.  Its proper role is to act as a referee, not a booster — to allow employees to choose union representation, or not to choose it, as they see fit, under conditions that foster free expression of an informed choice.  Allowing workers to cast a secret ballot in government-supervised election is the best way to do that.

Are we too harsh?  Double standards aren’t pretty.  When states limit union organizing the Board attacks them, but when a state restricts employers from communicating with employees about unions, the NLRB is missing, even though federal preemption concerns are at least as worrisome.   Consider a 2009 Oregon law.  It prohibits employers from taking action against employees who refuse to attend employer-called meetings on unionization or other issues, and even allows employees to get court injunctions against so-called “captive-audience” meetings.  The law plainly addressed a subject covered by the federal law.  The Chamber of Commerce and others brought suit challenging the law on grounds that it was preempted by the NLRA.  But the NLRB was not among them.  True, a federal judge turned back the challenge on grounds the suit was not yet ripe – no one had been forced to attend a meeting, he said. But Mr. Solomon doesn’t see that as a problem for the Board’s own planned lawsuits. “[W]here a danger exists that public knowledge of the provision may result in ‘self-censorship; a harm that can be realized without an actual prosecution,’” the Board can act, he says.  So why didn’t the Board show up in Oregon?  Because it wasn’t politically correct.  This Board’s constituents saw it as “union busting” instead of “union boosting.”  The Board has no qualms, however, over forcing states to spend sorely needed revenue on litigating secret ballot measures that vindicate employees’ rights.  This is unsettling, indeed.
 
If there is any comfort to be gleaned from this, perhaps it is the knowledge that time is short. By the end of 2011, the Chairman’s term on the Board will have expired.  So will that of one of her like-minded colleagues.  EFCA legislation is foreclosed for now by a Republican-controlled House of Representatives. 

The Board surely has one eye on the calendar.  If it is to move its pro-labor agenda, it must act quickly. The threat to state attorneys general is not the last of these actions.  Expect more. Very soon.
 

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Having argued for the need to address through federal court injunctions alleged employer misconduct that can “nip union organizing conduct in the bud” (see NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC) — in particular, firing employee organizers and activists — the General Counsel now wants to accord the same treatment to alleged discrimination that takes place before the union arrives on the scene and after it has folded its tent and gone away in defeat.  He reasons that discriminatory actions taking place outside the period of union organizing can inhibit union organizing also — in the future.  He wants “pre-nip” and “post-nip” injunctions for this conduct, too. 

It is all catnip, however, for misbehaving employees who are about to be fired for cause.  They need only draw around them the mantle of claimed union activity and they may act with impunity.  They will not resist the General Counsel’s tempting offer to tie their misconduct to protected union activity, however tenuous.

Unionization?  If the union has never been at the employer or it has been there and gone, where is the connection deserving immediate protection?  If these discharges require judicial intervention before the Board has heard and decided the claims of misconduct, it is difficult to envisage what discharge (by a union-free employer, at least) wouldn’t qualify for injunctive relief. 

The General Counsel, as a practical matter, seems to be trying to have all these cases determined on an expedited basis in federal court, where, if successful, he can get an immediate order punishable by contempt. Once the district court accords relief and reinstates the employee, the Board will be in no hurry to complete its proceedings.  Many of these cases, we suspect, will become anti-climactic. As for the reinstated employee, he enjoys the insulation offered by the employer’s fear of a contempt or retaliation charge.  An employer will be most reluctant to terminate this employee again if he faces additional litigation or sanctions. 

Adding insult to injury, the General Counsel will probably ask the court for a back pay award, including the newly suggested minimums, and even compound interest, while the employee is “provisionally” reinstated.

With all this new litigation who needs EFCA?

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Adding to the troubles employers are beginning to face with the new National Labor Relations Board is a report that the agency’s General Counsel (GC) has some new ideas to ratchet up employers’ costs of litigation, and even settlement.  The GC, the Board’s chief prosecutor, professes fears that victims of alleged discrimination on account of union activity may think the Board lacks teeth in remedying claimed violations. He is weighing a requirement that employers pay alleged discriminatees at least three months’ back pay where the employer settles a discrimination case before litigation, and at least one year’s worth of back pay after litigation – whether or not the victim has suffered any actual loss of pay!

The General Counsel, we are told, thinks the National Labor Relations Act does not forbid this remedy.  We strongly disagree.  This is a punitive measure by any standard.  It is unrelated to actual losses suffered by the employees involved; indeed, it would constitute a windfall for them.  No employee reasonably should expect “a big payday” merely for complaining of discrimination to the Board, even persuasively, yet that’s precisely what is promised.  In fact, it seems the aggrieved employee has only to convince some regional Board officials to move forward with an agency complaint and the employer will have to pay a minimum of three months’ wages just to settle.  If the employer exercises its right to contest the accusation before a judge, it risks getting tagged with even more onerous damages.

The current Act contains no provision for punitive damages.  It speaks of “reinstatement of employees, with or without back pay.”  The Board, to our knowledge, has never construed the Act to allow the kind of remedy considered here.  The General Counsel’s proposal seems to be just the latest assault on employers by an agency unconstrained even by its own statute.

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Jackson Lewis has filed a “friend-of–the-court” brief on behalf of the U.S. Chamber of Commerce, urging the National Labor Relations Board to adhere to its three-year-old decision in Dana Corporation, 351 NLRB 434 (2007) (originally known as Dana/Metaldyne).  That decision allows employees to test immediately through a decertification petition and Board-conducted election their employer’s extension of voluntary recognition to a union based on a card check or similar evidence of majority preference.  The filing came in Lamons Gasket, Case No. 16-RD-1597, where the agency is preparing to revisit the issue amidst much controversy.  James Stone and Kelli Webb Michaud in our Cleveland office wrote the amicus brief, with valuable assistance from Michael Lotito, Phil Rosen, and Harold Weinrich.  Mr. Stone had been lead counsel for Metaldyne in the earlier case.

Prior to Dana, in a rule first announced in Keller Plastics, 157 NLRB 583 (1966),the NLRB observed a strict bar, usually for a year, during which it would not consider a NLRB decertification petition or other attempt to oust the union following an employer’s granting of voluntary recognition. As a result, employees in many cases were prevented for a year from obtaining a secret ballot election to decide freely whether to have union representation (or to change unions) while the recognized union and company negotiated a contract.

This rule developed in a different era. When voluntary recognition was relatively rare and an inflexible rule of this sort might be justified in order to preserve labor peace.  A secret ballot election was generally regarded as a preferred and more reliable indicator of employee free choice, but in a few cases allowances could be made. 

Card-check-based voluntary recognition agreements grew increasingly common in recent decades, however, often based on neutrality agreements.  The safeguards of Board-conducted balloting became harder to secure for employees.

The Board in Dana attempted to harmonize voluntary recognition arrangements made by employers and unions with the need to protect employees’ fundamental right of free choice in choosing (or not choosing) a collective bargaining representative.

It required an employer who voluntarily recognized a union to notify employees in a posting that voluntary recognition had been granted, but that the NLRB would accept, for a limited time (45 days following posting), a request to vote on keeping that recognition (or for a  rival union).  At least 30 percent of the unit employees had to back the move for the Board to hold an election.

Approximately 54 elections have been held under Dana. In 15 cases (approximately 28 percent), employees rejected the recognized union. In two of those elections, employees voted to replace the recognized union with a rival.

Now, however, pro-union members have been appointed to the NLRB.  To no one’s surprise, the new Board has decided to re-examine Dana. When the United Steelworkers (“USW”) challenged the direction of a Dana election following a decertification petition contesting Lamons Gasket’s recognition of the USW, the Board seized its opportunity. Over a vigorous dissent by its Republican members, the Board majority directed reassessment, indicating Dana, in its view, likely was unnecessary, burdensome, and contrary to NLRB precedent.

The U.S. Chamber of Commerce, like many employer groups, is concerned that the Board will sacrifice employee free choice in order to help unions organize. The Chamber assisted Jackson Lewis in preparing the amicus brief supporting the Dana rule.

It is axiomatic that NLRB-conducted elections are the preferred form of ascertaining employee choice as to union representation (or the lack thereof). The U.S. Supreme Court, the NLRB, employers, employee groups and even unions all have so concluded. We argue in our brief that Dana helps assure employee free choice and offers valuable safeguards against the abuses of voluntary recognition through card check and neutrality agreements. We reject the current Board’s suggestion that the relatively few instances where recognition has been rescinded under Dana means that the rule is unimportant. This experience may signal just the opposite: that mindful of Dana, parties to such agreements are careful not to overreach.  Remove the shadow of Dana, and the old abuses will return.

As a form of “consumer protection” for employees, we believe the rule critical to vindicating employee rights under the NLRA.

Briefing in the case will be completed in November, and a decision by the NLRB is expected early next year.
 

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In J&R Flooring, Inc., dba J. Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), the “full” four-member National Labor Relations Board held, “[E]mployers and unions that are found to have violated the Act should be required to distribute remedial notices electronically, such as by e-mail and/or posting on an intranet or the internet, in addition to the traditional posting of a paper notice on a bulletin board.”  The ruling applies to all pending and future cases.  Member Brian Hayes, the lone Republican on the Board, dissented, arguing that the Board should not have turned an extraordinary remedy into a routine one.

The NLRB’s decision is flawed.  It assumes that if an employer uses electronic communications for any purpose, it uses them for all purposes.  Employers communicate different kinds of information differently.  Employees are familiar with these choices and adjust their expectations for getting information accordingly.  Official government notices to employees (e.g., minimum wage, fair employment practices, OSHA) are communicated to workers in many workplaces by physical postings; if other government notices are not communicated by intranet or e-mail, why should NLRB settlement agreements have to be handled uniquely?  If employees are used to seeing such notices on lunchroom bulletin boards (where they go for coffee, vending, etc. and can talk to each other on non-work time), why is such a posting suddenly ineffectual for Board notices/settlements?  Shouldn’t the NLRB have to prove that such postings don’t work, rather than assume the contrary as a matter of law? 

Some NLRA cases find interference with employee rights only where employers treat other union solicitations differently, rather than other solicitations in general.  Why doesn’t the Board look for comparisons here?  Is it laying the groundwork for overruling its 2007 Register-Guard decision (which restricted the use of employer electronic communications systems for union organizing) by establishing here that electronic communications are the only effective ways of transmitting important information in the workplace?

Now the Board’s regional directors seem to be compounding J. Picini’s error.  These officials serve as the NLRB General Counsel’s field prosecutors. Reports are reaching us that some of them are insisting that electronic notification now apply to all NLRB settlement agreements.  Most unfair labor practice cases are settled before hearing, rather than litigated.  Thus, a far greater number of cases could become subject to the new requirement than was contemplated by the decision itself.   J. Picini offers no support for this expansive application; as the Board, itself, framed the issue, the decision would apply only to (a) violation findings (b) made by the Board.

The problem with the regional directors’ demands is that they may involve “prosecutorial discretion.”  Unless they are instructed otherwise, these officials can seek electronic notification of an agreement as a condition of settling a case, even if the Board’s decision does not say so.  Settlement is a negotiation.  “If you don’t like the terms offered, you can litigate,” they will say.   Litigation, though, is not practical in many cases.

That is why the NLRB General Counsel should bar such requirements in agency settlements, or reserve them for special cases.  Whether the present General Counsel would be inclined to do so, however, is doubtful.   Of course, if the Board’s litigation caseload spiked because of respondents’ refusals to settle with such requirements, or if Members of Congress started questioning the justification for such notification, things might change. 

But I wouldn’t hold my breath.

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It was only a matter of time before Big Labor started to get from the Labor Board what it has been after all along. Failing to achieve compulsory unionism through enactment of the Employee Free Choice Act, unions appear to be relying on the NLRB appointees they supported to achieve the same goals administratively.

Enter NLRB Member Mark Gaston Pearce. The former union lawyer from Buffalo said in a speech at the Suffolk University Law School in Boston, that the NLRB should seek to hold its representation elections “as brief[ly] as possible” after a union files its petition. Finding “intriguing” the Canadian system where elections are held within 5 to 10 days after a petition is filed and eligibility issues are decided later, Pearce said “we can do better” than the current 38-day pre-election period.  He claims the current longer time permits more unfair labor practices to be committed, jeopardizing the chances of a valid election.

The time from petition to election is a product of the National Labor Relations Act itself. The procedures the Board has worked out over many decades to help ensure a fair election that reflects the free and informed choice of employees have worked well overall. In fact, unions win about 66% of all elections the NLRB conducts and of those they lose, only a very small number are ever overturned because of employer unfair labor practices, facts Pearce failed to discuss.

Of course, employees are much less likely to vote for union representation once they have had the opportunity to hear their employers’ side. But because union organizing is usually conducted secretly, employers would not know they need to share their views with their workforce until an election petition has been filed.  A “quicky” election, then, really seeks to cut off debate over unionization before it begins. It would make an employer’s statutory “free speech” rights under Section 8(c) virtually meaningless.

Unions file their election petitions by getting employees to sign authorization cards without employees necessarily knowing all the facts. The quicky election would simply rubber-stamp the cards. Casting a ballot would be mere window dressing, an exercise almost as meaningless as the drafters of EFCA could have hoped.

The NLRA contemplates an informed electorate. Unions and their supporters cannot be depended upon to tell employees the downside of unionization — only employers are in a position to do so. Indeed, the Act incorporates a right of employer free speech. As for unfair labor practices, the Board has ways to address them. Its Acting General Counsel, in fact, just unveiled a new protocol for seeking federal court injunctions and speedy hearings where pre-election violations are charged. (See NLRB to Weigh Injunctions Routinely for Unlawful Discharges in Organizing Campaigns, Plans Acting GC.) What proponents of quicky elections really are saying is that employers should have no role in NLRB elections, a position advocated many years ago by Craig Becker, now a Board colleague of Mr. Pearce. That is not the law. It should not be the law.

Perhaps this is lightning rod and a hint of things to come from the pro-union Board majority. By floating the possibility of only a 5- or 10-day period from petition to election and drawing criticism for it, employers, they figure, may be grateful when a 14- or 21-day rule ultimately is pushed through. Thirty-eight days is little enough time for employers to fulfill their informational role intended by the NLRA. They should resist any effort to cut it further — not to 5 days, 10 or 21.

It may be only a matter of time before quicky elections become standard, but if and when that happens, it will have a profound impact on employers and employees alike.

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The National Labor Relations Board was told by the U.S. Supreme Court in June that it had lacked authority to issue hundreds of decisions and orders from January 2008 through April 2010 with only two members in office.  At the time of the High Court’s ruling in New Process Steel, L.P. v NLRB, 130 S.Ct. 2645 (2010), nearly 100 cases were pending in the Supreme Court or the courts of appeals involving such Board decisions.  It was clear then that these cases would have to be revisited by the Board having a proper quorum.  That process has now begun.  However, it is hardly reassuring.

On August 5, the Agency issued four brief decisions and orders in these previously heard cases.  In three of them, the courts of appeals had denied enforcement to the Board’s orders on the authority of New Process Steel.  In the fourth, the appellate court had remanded the case to the agency for further proceedings before the case was decided.  The decisions are virtual clones.  Dutifully reciting that the current three-member panel had considered the administrative law judge’s decision in light of the exceptions and briefs (filed earlier), the NLRB panel summarily reaffirmed its previous two-member decision in each of the cases, for the reasons already stated, incorporating by reference the earlier decision in the new determination.  Chairman Liebman and Member Schaumber, who had issued the earlier, defective decisions and orders, were members of the panel in each instance, joined by Member Pearce. They explained:

Consistent with the Board’s general practice in cases remanded from courts of appeals, and for reasons of administrative economy, the panel includes the members who participated in the original decision.  Furthermore, under the Board’s standard procedures applicable to all cases assigned to a panel, the Board members not assigned to the panel had the opportunity to participate in the adjudication of this case any time up to the issuance of this decision.

This explanation is consistent with a press release issued earlier explaining the Board’s intentions. 

The Board plainly is giving short shrift to its compulsory reexamination.  It is going through the motions.  It is reassigning these matters to the same two members who considered them originally, and evidently is not soliciting any further briefing or argument.  The results are easily foretold.   Rubber stamps are the order of the day.

Does this numbing exercise suffice?  We don’t know, but the Board’s cursory treatment is likely to produce its own spate of appeals.  The circuit courts, and perhaps the Supreme Court, then have a chance to consider whether the Board has made amends for its past mistakes.

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The U.S. Senate has unanimously confirmed both Mark Gaston Pearce and Brian Hayes to serve as members of the National Labor Relations Board.  This brings the membership at the Board from four to five for the first time since 2007.   

Mr. Pearce has already been serving as a member of the NLRB since April 2010, when he received a recess appointment from President Barack Obama.  Mr. Hayes, a Republican nominee who did not receive a recess appointment from President Obama, joins the Board as its fifth and final member. 

The current composition of the Board therefore is as follows:

1)      Chairman Wilma Liebman (confirmed through August 2011)

2)      Member Peter C. Schaumber (confirmed through August 2010)

3)      Member Craig Becker (serving a recess appointment that expires at the end of 2011)

4)      Member Brian Hayes (confirmed through December 2012)

5)      Member Mark Gaston Pearce (confirmed through August 2013)

Craig Becker, who was given a recess appointment in April, along with Mr. Pearce, was not confirmed in the June 22 Senate action. His nomination for a full term is still pending.  This means Mr. Becker can continue to serve on the Board only until the end of 2011.  Furthermore, Member Schaumber’s term will expire in about two months.  This will leave another vacancy on the Board to be filled by President Obama.  We will keep you posted with any updates on Mr. Schaumber’s replacement.

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The National Labor Relations Board (NLRB) announced on June 20, 2010, that Lafe Solomon was tapped to serve as the NLRB’s Acting General Counsel.  The General Counsel, as “gatekeeper” of cases at the NLRB, is responsible for the investigation and prosecution of unfair labor practice cases. 

Mr. Solomon began his career with the NLRB 38 years ago as a field examiner in the Seattle office.  Most recently, Mr. Solomon served as director of the NLRB’s Office of Representation Appeals.

Mr. Solomon replaces Ronald Meisburg as outgoing General Counsel.  Mr. Meisburg, whose term as General Counsel did not expire until August, resigned his position effective June 20, which prompted President Barack Obama to appoint Mr. Solomon to the post.

As always, we will continue to follow this story.  Check back for updates.

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“If it ain’t broke, don’t fix it,” says the old adage.  So why is the National Labor Relations Board thinking of “tampering” with its time-tested booth-and-ballot box voting procedure for holding union representation elections?  No one is complaining about the current method.  Unions certainly should not; they have been winning a sizable and growing share of these contests.  Nevertheless, and despite the President’s professed vexation with things technological, his recently installed pro-labor NLRB wants to go hi-tech in conducting these elections, or at least use mail or telephone balloting routinely. 

The NLRB has published a Request for Information to explore possible sources for “secure electronic voting services” and is soliciting information about “proven solution[s]” for other techniques, as well.  Here is the text:

The NLRB's requirements are for the acquisition of electronic voting services to support conducting secret-ballot elections to determine representation issues. Specifically, the Agency requires a proven solution that supports mail, telephone, web-based and/or on-site electronic voting; that includes the necessary safeguards to ensure the accuracy, secrecy, observability, transparency, integrity, accountability, and auditability of Agency-conducted elections; and that has demonstrated experience in protecting similar type elections from both deliberate misconduct and simple error. With respect to electronic voting capabilities, the Agency specifically requests information, to the extent available, relating to what safeguards, if any, could be implemented to ensure that votes cast remotely were free from distractions or other interferences, including undue intimidation or coercion. The Agency also requests, to the extent available, information relating to experience regarding the level of participation achieved through remote electronic voting technology (vs. traditional on-site elections, whether manual or electronic).

The combination of the NLRB's continuing technological modernization, the numerous locations and size of offices, and varying end-user competency levels may add complexity to the electronic voting services solution.

Obviously, the Board recognizes that these procedures are far more vulnerable to misconduct and are more likely to subject employees to interference, undue intimidation and coercion.  From working with computers, moreover, we know that any safeguards likely will be effective only until the next determined malefactor thinks up ways of getting around them. 

So why bother?  Unions are still smarting over their failure to push through EFCA (Employee Free Choice Act).  They are looking for ways to achieve administratively what they could not in legislation.  Perhaps unions see in new NLRB voting procedures an opportunity to further leverage their power.  They can target individual, dispersed workers more effectively and diminish the influence of employers in opposing organization.   

The Board is fast-tracking this RFI.  It wants responses by June 29. 

The system may not be broken, but with a union-friendly administrative agency in place, we have not heard the last of an idea that may benefit organized labor. 

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This article was written by Roger P. Gilson, a partner in our Stamford, Connecticut office.

Secretary of Labor Hilda Solis’s comments at the AFL-CIO annual meeting last week confirmed speculation that, with or without the resolution of health care legislation, President Obama will announce his recess appointment of Craig Becker to the National Labor Relations Board when Congress breaks for the Easter recess. While this effectively could preclude Becker from serving a normal five-year term, he would serve for about a year-and-a-half, enough time to have a profound impact on labor relations in this country. 

In addition, some say the President also will appoint to the Labor Board union-lawyer Mark Pearce, who was previously nominated, and an as-yet-unnamed person (this would be in place of Bryan Hayes, the previous nominee for the currently vacant “Republican seat” on the Board). Some believe a recess appointment of Becker would be something the President can deliver to his labor supporters in advance of the upcoming mid-term elections.  

Filling the Board’s vacancies with recess appointments now would give the Board time to achieve significant labor law reform through rulemaking without EFCA, which is unlikely to pass any time soon.  Under current law, the NLRB, without Congress, may implement significant change through administrative rulemaking. It did so when it issued rules on the appropriate bargaining unit for acute care hospitals, which significantly reduced delays in scheduling union elections within that industry.   

Rulemaking could be used to streamline election procedures, expand voting “access” through electronic or absentee balloting and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations. Along with traditional case-by-case decisionmaking and the development of internal agency policies, the Board could use rulemaking to realize some of the advantages unions sought, but have yet to achieve through EFCA. 

There may be another reason for recess appointments. The U.S. Supreme Court has agreed to review a case on whether the current two-member Board had a sufficient quorum when it issued decisions over the past year-and-a-half. The District of Columbia Circuit Court of Appeals has ruled that it did not, though the majority of the other circuits have said otherwise. If the Supreme Court rules against the Board, it will nullify all of those decisions. Without an appropriate number of Board members, the current two-member Board cannot rectify the situation.  If the anticipated recess appointments materialize, a more labor-oriented Board would have the chance to re-consider and re-write those decisions.

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This article was written by Roger P. Gilson, a partner in our Stamford, Connecticut office.

Secretary of Labor Hilda Solis’s comment at the AFL-CIO annual meeting on March 3^rd confirms speculations that, with or without the resolution of health care legislation, President Obama will announce the appointment of Craig Becker to the National Labor Relations Board when Congress breaks for its two-week Easter recess, beginning March 29. 

While this “recess appointment” effectively could preclude Becker from serving the normal five-year term were he confirmed by Congress, he would serve about 18 months, enough time to have a profound impact on our nation’s labor law. 

Some say the President also will take the opportunity to appoint Mark Pearce, a union-side labor lawyer previously nominated (and had been expected to win confirmation) and another as yet unnamed person in place of the previous nominee to fill the currently vacant “Republican seat” on the Board.  

In addition to fulfilling the President’s need to respond to the interests of his supporters in organized labor, these appointments will allow the Board to initiate and achieve substantive rulemaking before Becker leaves. 

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Seeming to hint at a possible recess appointment of Craig Becker to the Labor Board, Secretary of Labor Hilda Solis stated at today’s AFL-CIO annual meeting that organized labor would be "very pleased" with how the Craig Becker nomination is resolved.  Union officials are predicting that President Barack Obama may appoint Mr. Becker when Congress breaks for the Easter holiday.

Stay tuned.

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