As those of you who have followed this blog know, on March 4, 2010, I reported that Obama had cut a deal with the Unions who were very upset at how Obama and the Democrats had so bungled the Employee Free Choice Act (“EFCA”), that he would make a recess appointment of Craig Becker to the National Labor Relations Board (“NLRB”). One more in the many “back room” deals the Obama administration has cut in just over a year in power.
What I predicted came true over the weekend with Mr. Becker’s appointment.
In essence, what we now have is a three member NLRB board that will not only go out of its way to reverse President Bush’s NLRB decisions, but this is going to be an activist NLRB and it will be creating new law all the time.
Of most concern to management is the idea that companies can be forced to recognize and bargain with “minority” unions. What does this mean? Normally, for a union to be certified as a bargaining agent there must be an election and the Union must win by 50% plus 1 of a secret ballot vote. If the Union wins, it is certified as the bargaining representative.
The “minority” union concept means that the Union no longer has to have a 50% plus 1 secret ballot vote to have a right to sit down and bargain with the Company. How many employees will be required in order to force a Company to meet this minority union and bargain for a contract? Nobody knows right now. However, my best guess is that the NLRB would at least require a 30% showing of interest by the entire bargaining unit. Thus, the 30% showing could do away with the election all together and just like EFCA, the employer would be required to meet and bargain with the Union and avoid an NLRB election.
From a union standpoint, this would even be better for the Unions than EFCA because EFCA was going to require the 50% plus 1 rule as its showing of interest.
Here is a short list of what I believe is current case law that the Obama NLRB will soon reverse:
- Back pay liability limits for salts.
- Burden of Proof on how long a salt would have worked.
- Lawsuits against Unions are protected.
- Voluntary recognition of a Union does not bar decertification of the Union.
- Broad definition of who is a supervisor.
- Employees who work in a non-union workplace are not entitled to a representative.
- Aw will employment status does not convert a permanent replacement into a temporary employee.
This is just a short list but it is clearly a “hit list” that the Unions believe the Obama NLRB will soon reverse.