IRI Intelligence Briefing

News and Developments Affecting the Workplace

Volume Number & Date: 
Vol. 2 No. 1 - March 2010

Becker Finally on NLRB

President Snubs Senate

President Obama has made two appointments to the National Labor Relations Board (NLRB), exercising a prerogative that presidents use to bypass Senate confirmation of controversial nominees during recesses. The President's appointments are:

  • SEIU and AFL-CIO attorney Craig Becker, who has been widely opposed by business groups
  • Attorney Mark G. Pearce, a member of the New York State Industrial Board of Appeals

Becker's strong pro-labor views were broadly attacked by businesses and Republicans since he was nominated last year. In a February 4, 2010, letter to Sen. Mike Enzi of the Senate Health, Education, Labor, and Pensions Committee, the U.S. Chamber of Commerce wrote, "Mr. Becker has written prolifically about the National Labor Relations Act, the law he would be charged with interpreting and enforcing should he be confirmed. Many of the positions taken in his writings . . . would disrupt years of established precedent and the delicate balance in current labor law. These positions have raised significant concerns in the employer community.

"Too many concerns remain for employers to be comfortable with this nomination. Among those concerns are the extent to which Mr. Becker would restrictively interpret employers' free speech rights and the extent to which he would seek to expand the use of intermittent strikes and other forms of work stoppages that disrupt the right of employers to maintain operations during labor disputes."

Becker now becomes the second union attorney on the NLRB, joining Chair Wilma B. Liebman, who is a former lawyer for the Bricklayers and Allied Craftsmen, and for the International Brotherhood of Teamsters.

The effect of two labor attorneys as NLRB members could be immense. As Stewart Acuff of the Utility Workers Union of America explained, "If we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees on the NLRB to change the rules governing forming a union through administrative action."

Becker's writings and speeches frequently have been called extreme by Republicans and business organizations. He has written, for example, that he favors mandatory unionization where an employee would choose which union to join, not whether to join a union.

In a 1993 Minnesota Law Review article, he argued that traditional tenets of democracy should not apply in union representation elections. Becker wrote that employers should be barred from:

  • Attending NLRB election hearings
  • Challenging election results even with evidence of union misconduct
  • Placing observers at representation elections to challenge ballots
  • Holding captive audience presentations

Becker also has called for representation elections to be held at neutral locations, not at the employer's workplace, and that mail-in ballots should be permitted.

Becker and Pearce join current NLRB members Chairman Wilma B. Liebman, a Clinton appointee, and Peter C. Schaumber, a Bush 43 nomination.

First named to the Board in 1997, Liebman is an outspoken proponent of labor unions, as the following passage from the

Journal of Labor and Society1 illustrates:

[A]n exclusive orientation toward an individual-rights regime could have troubling political and social consequences. Workers may view the employment relationship in purely individual terms and may fail to grasp common economic interests and the potential of collective action at work, as well as in the public sphere.

Without a functioning collective bargaining system, fundamental economic issues are placed off the table: distribution of wealth, control, and direction of economic enterprises. What institution will be as effective in efforts to minimize the randomness of fortune of democratic capitalism?

And without a strong independent trade union movement, what institution will stand effectively as a counterweight in our democracy to the growing political influence of corporations? What institution will speak for working people-indeed for the middle class-as effectively?

The fact that the Board has had only two members since 2007 has caused a lengthy backlog of several hundred undecided cases. Additionally, the Board is awaiting a decision from the U.S. Supreme Court concerning the legality of the 586 two-member decisions it has issued since 2007; three courts have said that only two members are needed to issue rulings, while a third court has said at least three members are needed.

Having two union lawyers on the Board could have two dramatic consequences for labor issues:

  • The NLRB, in theory, has broad discretionary power to issue rules implementing provisions similar to the Employee Free Choice Act. With Liebman and Becker leading the way, the Board could circumvent the need for Congressional action on EFCA and issue rules on card-check, shortened election periods, and employer involvement in unit determination.
  • The new "Obama Board" also may reverse a number of important pro-business rulings issued earlier in the decade by the Bush Board. Liebman wrote strongly worded dissents to these and many other decisions, and as Board chair, her previous disagreements could become the roadmap for reversing them.

Key NLRB decisions that may be reversed by the new Board include:

  • Oakwood Healthcare, Inc., which in 2006 clarified and expanded the definition of "supervisor." Not only is the Liebman Board likely to reverse this ruling, Congress is expected to revive consideration of the Re-Empowerment of Skilled and Professional Employees and Construction Tradeworkers (RESPECT) Act, which also would overturn the ruling. In her dissenting opinion, Liebman called the Bush Board majority's decision "mistaken in every critical respect."2
  • The Dana case, which found that employee rights are best served by secret ballot elections rather than by a voluntary card check process.
  • In the Register-Guard case, the Bush Board ruled that an employer can lawfully maintain a policy barring non-business use of its e-mail system. For example, an employer could permit e-mail solicitation for Girl Scouts but bar solicitation for union activities.
  • The majority of NLRB members in the IBM case decided that employees in nonunion workplaces do not have a right to have a representative of their choosing at disciplinary meetings. Liebman strongly opposed the ruling.
  • In Harborside Healthcare, Inc., the Board in 2004 ruled that pro-union activity of a supervisor warrants overturning a representation election if it "tended to have such a coercive effect on the employees that it was likely to impair their freedom of choice in the election." In her dissent at the time, Liebman wrote, "The majority's approach threatens to deprive unions of their natural leaders in the workplace."
  • Toering Electric Co.: The Board in 2007 held that union salts (union employees who seek employment at companies the union is targeting) may not always be considered employees within the meaning of the NLRA. In her dissent, Liebman wrote that the ruling "continues the Board's rollback of statutory protections for union salts who seek to uncover hiring discrimination by nonunion employers and to organize their workers."

The coming months promise to be tumultuous at the NLRB, especially if the Board decides to administratively implement card check and other EFCA provisions. Employers should be prepared for major changes affecting how unions organize, and be proactive in their readiness efforts.

1Working USA: The Journal of Labor and Society, Vol. 11, No. 1, March 2008
2Jones Day, Recent Developments in Traditional Labor Law, February 2010

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