NLRB Recess Appointments Signal Labor Policy Changes Ahead

April 6, 2010
On Saturday, March 27, the first day of the congressional recess for Easter, President Obama made several recess appointments to federal agencies, including a controversial appointment to the National Labor Relations Board (NLRB) that could have a significant impact on federal labor law.  Obama appointed to the NLRB two Democrats, Craig Becker, an attorney for the AFL-CIO and the Service Employees International Union in Washington, D.C., and Mark Pearce, a partner in the union-side labor law firm of Creighton, Pearce, Johnsen & Giroux in Buffalo, N.Y.  Their terms will expire at the conclusion of the next session of Congress in late 2011.  While the five-member Board traditionally includes three members from the president's party and two members from the opposing party, it had been operating with only two members - Democrat Chairman Wilma Liebman and Republican Peter Schaumber - for over two years.  The president had earlier nominated Becker, Pearce, and Republican Brian Hayes, who is the minority labor policy director with the Senate Health, Education, Labor and Pensions Committee, for regular appointments, but Senate confirmation of the package failed amid strong opposition to Becker.  On February 9, the Senate voted against cloture on Becker's appointment, marking a victory for AGC and others in the business community who opposed Becker because of his demonstrated anti-employer, pro-union bias and apparent interest in radically changing labor law through NLRB rather than legislative action.  AGC actively lobbied against the appointment via letters to and direct discussion with the Senate, along with a grassroots campaign yielding about 1,400 letters from AGC members.  Pearce and Hayes have not received any significant opposition.  The fate of Hayes' nomination remains to be seen, but it is likely to become embroiled in negotiations over the filling of vacancies to occur in August, when the terms of Schaumber and of NLRB General Counsel Ronald Meisburg will both expire.  Hence, the Board is now operating with three Democrats and only one Republican.  The change in Board composition may lead to significant policy changes over time.  The Board - which is responsible for administering the National Labor Relations Act (NLRA), the federal statue governing relations between private-sector employers and unions, has a great deal of power in setting labor relations mandates.  As administrations and party power change, often so does the approach of the Board, leading to shifting positions on various matters subject to statutory interpretation.  Liebman has publicly stated that she considers the NLRA to be a "living document" that should be interpreted dynamically.  Many commentators have speculated about the panoply of Board decisions (especially those decided during the Bush administration) that might be overturned by the Liebman Board, such as decisions concerning:
  • employer rights to prohibit supervisors from engaging in pro-union activity and the standards for determining who is a statutory supervisor;
  • representation rights of nonunion workers;
  • limitations on liability for back pay to union "salts;"
  • employer rights to permanently replace economic strikers;
  • whether an employer's reasonably based but unsuccessful lawsuit against a union constitutes an unfair labor practice when initiated with a retaliatory motive; and
  • the standards for combining in one collective bargaining unit temporary workers jointly employed by a staffing company and a client employer with regular workers solely employed by the client employer.
Cases already pending before the Board that Liebman has specifically cited as key issues include cases concerning:
  • whether union bannering - a common practice by the Carpenters union in the construction industry - should be subject to the free-speech protections accorded handbilling or the stricter secondary boycott restrictions placed on picketing;
  • whether an employer that knowingly employs undocumented workers must pay back pay if the workers are unlawfully terminated for pro-union activity;
  • the lawfulness of an employer's pre-recognition bargaining with a union that does not represent a majority of its employees; and
  • property access rights of a contractor's employees working on another employer's premises.
Liebman has also expressed a strong interest in the Board engaging in administrative rulemaking - i.e., promulgating regulations, which the Board has traditionally eschewed - and has already brought in experts to educate Board staff about the process.  According to Liebman, rulemaking would be useful because it would allow the Board to get input from the public about the "real-world" impact of the Board's positions.  Critics, however, charge that rulemaking would enable the Board to advance pro-union policies - such as expediting the union representation election process or requiring recognition of minority unions - in the absence of an appropriate pending case or statutory amendment.  Liebman has shown particular interest in a petition pending since 1993 asking the Board to issue a rule requiring employers to post workplace notices informing employers of their rights under the NLRA. In short, significant pro-union changes may be on the horizon, despite the stalling or failure of the Employee Free Choice Act in Congress.  AGC will continue to monitor developments and keep you informed.  In the meantime, employers are well-advised to examine employee relations and promptly address problem areas, such as substandard wages and ineffective managers.  Employers should also train supervisors about what they lawfully may and may not do in the face of union organizing activity.  Information on supervisor "do's and don'ts" is available to AGC members on AGC's Labor & HR Topical Resources Web page under the main category "Unions/NLRA" and the subcategory "Union Organizing Campaigns & Representation Elections." NLRB Chairman Liebman will be a featured speaker at AGC's 26th Annual Construction Labor Law Symposium on April 16.  Attorneys and Chapter staff are invited to attend.  Click here for more information.
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