By Steven Greenhouse
From The New York Times
March 31, 2010 [ Click here for NY Times article ]
Because of President Obama’s recess appointments of two union lawyers to the National Labor Relations Board, business groups are warning that the panel will kick quickly into a pro-union gear after 26 months of near paralysis, when just two of its five seats were filled.
Business groups fear that the appointment of Craig Becker, a lawyer for the A.F.L.-C.I.O. and the Service Employees International Union, will push the board to favor unions on dozens of issues — like whether companies should be required to allow union organizers on their property during organizing drives.
“Becker will bring a very strong, pro-union, anti-employer animus to decision-making at the board,” said Randel K. Johnson, an executive of the United States Chamber of Commerce. “Our view is he will resolve things almost invariably in favor of unions.”
Business organizations also worry that the board will revamp the rules for unionization elections by engaging more than ever before in broad rule-making while relying less on case-by-case decision-making.
Labor unions argue that the recess appointments of Mr. Becker and Mark Pearce, a Buffalo-based lawyer, will merely restore some balance after the board favored business under President George W. Bush.
“The Bush board took things in a really anti-worker direction,” said Jonathan Hiatt, chief of staff of the A.F.L.-C.I.O.. “Workers have taken a beating under board rulings in recent years, and we hope the new board will provide a little more fairness to workers who want to exercise the right to organize and bargain collectively.”
Mr. Becker and Mr. Pearce declined to be interviewed about their views on labor policy.
After being nominated, Mr. Becker, a former law school professor, came under fire for writing in a 1993 law review article that employers should not have a legal right to campaign in union elections. When Republicans said that his view conflicted with current law, Mr. Becker said that he was merely engaging in a scholarly debate and that as a labor board member, he would follow the law in deciding cases.
The labor board, created by the National Labor Relations Act of 1935, oversees enforcement of the laws governing union drives, strikes and negotiating labor contracts in the private sector.
Among the areas where unions hope the Obama board will take a new tack is the Bush-era ruling that graduate teaching assistants are not employees and therefore do not have a right to unionize. Labor leaders also hope the Obama board will reverse a ruling that many senior nurses are supervisors, rather than rank and file, and thus cannot join a union. That decision has hamstrung many unionization drives at hospitals by leading to litigation about which nurses can unionize.
One thing labor and business agree on is that the board’s deadlock will soon end. Since January 2008, the board has had just one Democratic member, its chairwoman, Wilma B. Liebman, and one Republican, Peter C. Schaumber. Now there will be three Democrats and one Republican.
About 220 cases are pending at the board, half on important, controversial issues that Ms. Liebman and Mr. Schaumber have not tackled, believing they should not be handled by just two members. And in about 60 cases, the two members have deadlocked.
“There’s now a full complement of Democrats on the board so they can start doing something,” said Samuel Estreicher, a labor law professor at New York University. “I think you’re going to see a more activist N.L.R.B.”
Accusing the Republicans of obstructionism in blocking or delaying his nominees, Mr. Obama appointed Mr. Becker and Mr. Pearce last Saturday after Congress left for a recess. Many Republicans criticized the move, which came after Democrats failed to muster 60 votes to overcome a threatened filibuster in the Senate. But Democrats said that 7 of Mr. Bush’s 10 appointments to the N.L.R.B. had been recess appointments, one of them the Chamber of Commerce’s director of labor law policy.
For the last decade, many unions have avoided the labor board and its elections when seeking to unionize workers. The number of board-supervised elections fell to 1,343 last year, from 3,162 a decade earlier. Unions have instead often pursued card check, seeking to persuade a majority of a workplace’s employees to sign cards saying they want a union and then mounting a campaign to press management to grant union recognition.
Many academic experts predict that the Democratic-dominated board will revamp rules so that unions do not feel the system is tilted against them. This could lead them to turn more to board-supervised union elections.
Unions often complain that it can take two months to hold an election, letting pro-union sentiment dissipate while management campaigns against the union, often in meetings that workers are required to attend — all while companies can bar union organizers from setting foot on their property. Unions also complain that many companies illegally fire union supporters during organizing drives and that it often takes the board three or four years to reinstate them.
“The union movement feels the board processes are not giving them a fair shake,” said James J. Brudney, a labor law professor at Ohio State.
Unions say all this helps explain why the share of private-sector workers in unions has fallen to 7.2 percent.
Harold P. Coxson Jr., a management lawyer and former Chamber of Commerce official, voiced concern that with Congress unlikely to enact legislation that makes it easier to unionize, the labor board “will make the difference in the debate.” Among the ideas that have stalled in Congress since the Democrats lost their 60-vote supermajority in the Senate is requiring snap unionization elections — within 7 to 10 days of pro-union workers petitioning for an election.
“We have heard that they are going to engage in rule-making that could impose ‘quickie’ union elections, perhaps in 5 to 10 days,” Mr. Coxson said. “The board will demonstrate with its agenda that they are not irrelevant.”
In an interview, Ms. Liebman declined to discuss the areas where the board might use rule-making.
“Rule-making is something that certainly academics have been talking about for some time,” she said. “I think it’s worth consideration. It’s often served up as the antidote to all the flip-flopping” between rulings by Democratic boards and Republican ones.