Labor and Employment Alert: Employers on Notice–New NLRB Members’ Bias Towards Union and Employee Interests Will Impact Both Union and Non-Union Work

November 2009

Employers on Notice–New NLRB Members’ Bias Towards Union and Employee Interests Will Impact Both Union and Non-Union Workplaces

Recently, President Obama nominated Craig Becker (“Becker”), Mark Gaston Pearce (“Pearce”), and Brain Hayes (“Hayes”) to become Members of the National Labor Relations Board (“NLRB” or the “Board”). Becker, Pearce, and Hayes have yet to be confirmed. Further, President Obama designated longtime Board Member Wilma Liebman (“Liebman”) to be the Chairwoman of the Board. These changes to the Board’s membership are predicted to dramatically shift the Board’s decision making towards employees and unions. Employers, both union and non-union alike, must be wary of the consequences of this shift on their employees and, therefore, their business.

The Board has five members. Generally, the political party in power, the Democratic Party, garners three members of the NLRB, while the minority party, the Republican Party, has two members of the Board. Currently, the Board consists of only two Members, Wilma Leibman, Chairwoman, and Peter Schaumber. Both Becker and Pearce are Democratic nominees, while Hayes is the second Republican nominee.

Chairwoman Wilma Liebman

President Obama designated Wilma Liebman as Chairwoman of the NLRB on January 20, 2009. President Clinton first appointed Liebman to the NLRB in 1997. President Bush reappointed her to the Board in both 2002 and 2006. Her current five-year term expires in 2011.

Prior to joining the NLRB, Liebman served for two years as Deputy Director of the Federal Mediation and Conciliation Service (“FMCS”). Liebman also served as labor counsel for two unions prior to joining FMCS. As such, she is known as being distinctly pro-union.

Indeed, Liebman acquired and perpetuated a reputation for dissent during her tenure on President Bush’s Republican-controlled Board. During this time, she frequently dissented from majority, employer-leaning Board decisions. Once the Board is fully staffed, Liebman, as the new Chairwoman, is expected to spearhead a revisiting or reversal of much of the Bush-era NLRB precedent. Further, now that she is part of a pro-union majority, Liebman’s previous dissents are likely to provide roadmaps for the new NLRB’s pro-union decisions.

Peter Schaumber

President Bush appointed Peter Schaumber to the NLRB in 2005. He briefly served as the Board's Chairman between 2008 and early 2009. His current five-year term expires in 2010.

Prior to joining the NLRB, Schaumber served as both a public and private sector attorney and a labor arbitrator. His views are strongly pro-management.

Craig Becker

President Obama also nominated Craig Becker to be a Member of the NLRB on July 10, 2009. Becker currently serves as associate general counsel to the Service Employees International Union (“SEIU”) and the American Federation of Labor & Congress of Industrial Organizations (“AFL-CIO”). Becker was formerly a professor of labor law at the UCLA School of Law, the University of Chicago Law School, and the Georgetown Law School.

Becker is, by far, the most controversial of President Obama’s recent nominations to the NLRB. Much of this controversy stems from two of his published articles: (1) “‘Better than a Strike’: Protecting New Forms of Collective Work Stoppages Under the National Labor Relations Act,” published in the University of Chicago Law Review in 1994 and (2) “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” published in the Minnesota Law Review in 1993. Many employers’ issues with Becker’s nomination emanate from his belief that an employer has, at most, only a limited role in the union election process. This would be a vast departure from historic Board doctrine, which recognizes employers’ interests and active participation in the election process.

Other controversial positions advocated by Becker include:

Prohibiting an Employer From Refusing to Bargain: Becker believes that employers should not be allowed to refuse to bargain after a union election victory to provoke an unfair labor practice charge, in an attempt to eventually have an appellate court review the employer’s objections to the certification of a bargaining representative. Rather, Becker would only allow an employer to refuse to bargain in one instance: when a union insists on bargaining over employees who are not part of the bargaining unit. An employer’s right to refuse to bargain would effectively be destroyed and employer’s would lose an important weapon to challenge union certification elections. That is, Becker would eliminate employers’ ability to “test cert.”
Eliminating Employer Participation In NLRB Cases: Becker argues that, even though Board rulings might “indirectly” affect them, employers should have no right to be heard in an NLRB case. Many employers would disagree as bargaining obligations greatly affect operating costs and procedures.
Permitting Intermittent Strikes: Becker would extend the National Labor Relations Act (“NLRA” or the “Act”) to protect a union’s ability to take intermittent strikes. These are short term strikes taken without notice to protest discrete grievances allow unions to create chaos for employers: small groups of employees could strike at critical times without fear of replacement or discipline.
Restricting Employer Involvement in Elections: Becker believes that employers should have no right to question either employee voting eligibility or union campaign conduct because employers are not formally involved in the process as voters or a candidate seeking to represent the employees. Removing an employer’s right to challenge voter eligibility or union campaign conduct will greatly favor union interests as it is much less likely that employees register the same challenges with the Board. In a sense, allowing this would enable unions to act nearly without recourse in the campaign process.
Leveling the Union Campaign Playing Field: Assuming employers play any role whatsoever in a union campaign, Becker would force employers to either provide unions equal access to employees or follow their own nonsolicitation rules and, thus, only be allowed to contact employees in the same way as unions are (i.e., after-work meetings or pamphletting outside the worksite). Enacting such rules would dramatically impact union campaigns by forcing an employer to choose the lesser of two evils: (a) letting union organizers hold captive audience speeches or (b) drastically limiting their own campaign conduct.

Because of these, and other, controversial positions taken by him in the past, Becker’s nomination is much more likely to be challenged by Senate Republicans. If he is eventually confirmed, Becker’s previous articles shed light on how he will adjudicate cases as a Member of the Board.

Mark Gaston Pearce

President Obama nominated Pearce to be a Member of the NLRB on July 10, 2009. In 2008, Pearce was appointed to serve as a Board Member on the New York State Industrial Board of Appeals, which reviews rulings and compliance orders of the New York State Department of Labor. He has been a union-side labor attorney for his entire career. If confirmed, Pearce’s term will end August 27, 2013. As a Democratic nominee, Pearce is expected to help form the new pro-union majority.

Brian Hayes

On July 10, 2009, President Obama nominated Hayes for the final vacancy on the Board. Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions. Previously, Mr. Hayes was in private legal practice for over 25 years. His practice was devoted to representing management clients in all aspects of labor and employment law.

Effect of the Potential Confirmations

By way of a recent decision of the U.S. Circuit of Appeals for the D.C. Circuit, the current two-member NLRB has no authority to act on behalf of the NLRB. This conflicts with contrary decisions the First, Second and Seventh Circuits. The U.S. Supreme Court recently agreed to hear arguments on a two-member Board’s ability to hear and decide cases. In order to conduct official business, the Board supposed to have a quorum of at least three members. As such, if, and when, either Becker and/or Pearce are confirmed as Members of the Board, the Board will have a quorum and Democrat appointees will constitute an either 2-1 or 3-1 majority. Whenever the final nominee is confirmed, the Democratic majority will be 3-2.

Upon reaching a quorum, employers can expect to see much of the favorable NLRB case law created during former President George W. Bush’s administration reversed or modified. Indeed, the Clinton Board was notoriously active, reversing decades of NLRB precedent. Examples of Board precedent which commentators predict will be reversed or modified by a pro-union Board are: (a) a wide reading of the definition of supervisor under the NLRA (Oakwood Healthcare Inc., 348 NLRB 686 (2006)); (b) that graduate students with teaching duties are not employees under the Act (Brown University, 342 NLRB 483 (2004)); (c) that leased employees and regular employees cannot be part of the same bargaining unit (Oakwood Care Ctr., 343 NLRB 659 (2004)); and (d) that non-union employees do not have the right to have another employee present at an investigatory interview, known as Weingarten rights (IBM Corp., 341 NLRB 1288 (2004)). Many, many more decisions are predicted to be reversed and/or modified in favor of Unions and employees.

It is easy to see that Pearce and Becker, if confirmed, would create a pro-union majority on the Board and could drastically shift NLRB case law toward union and employee interests. Employers are, therefore, on notice that the much of the current Board precedent is likely to be changed and that these vast changes may dramatically impact how they interact with employees, both union and non-union.

Conclusion

When one considers the currently pending nominations, alongside other pro-union objectives discussed by President Obama on the campaign trail, such as the Employee Free Choice Act and the RESPECT Act, which would allow many front-line supervisors to become bargaining unit employees, the current political climate is distinctively pro-union. Non-union employers must be very aware of the potential for unionization of their workforce and take steps to minimize the likelihood that this will occur. Moreover, union employers must pay close attention to changes in NLRB precedent and adjust their actions with employees accordingly. Now, more than ever, it is essential for employers to proactively insulate their workplace against the threat of unionization.

If you would like to discuss the impact of the new NLRB members on your business, changes in Board precedent, how unionization may impact your business, and/or how to take steps to avoid possible unionization, please contact one of our Labor and Employment attorneys:

Brendan Fitzgerald, 216.430.2009 or bfitzgerald@mcdonaldhopkins.com

Todd L. Sarver, 614.458.0042 or tsarver@mcdonaldhopkins.com

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