Becker Appointment to NLRB is a Game Changer

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:

  1. Back pay liability limits for salts.
  2. Burden of Proof on how long a salt would have worked.
  3. Lawsuits against Unions are protected.
  4. Voluntary recognition of a Union does not bar decertification of the Union.
  5. Broad definition of who is a supervisor.
  6. Employees who work in a non-union workplace are not entitled to a representative.
  7. 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.


Union’s Win First Concession from Obama

Even though Craig Becker, an attorney with the SEIU, was REJECTED to be appointed to the National Labor Relations Board by the Senate in a bi-partisan vote ,  it would appear that the Unions in general, and Andy Stern in particular, are so outraged by the Democrats failure or incompetence to pass the Employee Free Choice Act a/k/a EFCA, that they have demanded, and Obama has agreed, to give Becker a recess appointment to the NLRB anyway.

In earlier posts, we have discussed Mr. Becker and his agenda for labor.

Obviously, the hopes by the Unions are that Becker can do what the Democrats failed to do, and enact EFCA in NLRB cases.  It is what we call legislating from the bench and make no mistake about it, that is EXACTLY what the Unions want him to do and that is EXACTLY what he WILL do.

Why would Becker want a job that he can only hold for less than a year unless in that one year’s time, he intends to wreck havoc on companies and seek revenge for all the slights that labor has suffered under BOTH the Bush and the Obama administrations to date.

While I understand Labor’s frustrations at the Democrats, I just don’t think they ought to atone for this sin by placing on the NLRB an in your face left wing nut who wants to enact the EFCA legislation by NLRB decisions .

Minority Labor Unions Are Coming

Based on the make-up of Congress, it appears that EFCA is going to pass and will become law sometime in 2009.  If for some reason – a reason I cannot fathom – EFCA does not become law, it does not mean that employers are in the clear from forced unionization.


Towards the end of 2007 there were more Republicans in office and it was apparent that EFCA would succumb to the Republican’s filibuster and not pass.  At that time, organized labor began an initiative of alternative ways of organizing workers – through minority unions.


Steelworkers and auto workers were first minority unions at several companies and then gained contracts that helped persuade other workers to organize as part of a company-wide union.  This is analogous to a union being in one location or one store of a company and then spreading to the other locations until the whole company is unionized.


Seven unions (USW, UAW, IBEW, CWA, UE, and the CAN) petitioned the NLRB to require private-sector employers to negotiate with union members even though the union had the support of only a minority of the employees.  Clearly, this was a last-ditch effort to do an end-around to the failing EFCA legislation.


The unions wanted the NLRB to adopt the following rule despite knowing that it would not likely pass under the current Bush NLRB:


Pursuant to Section 7, 8(a)(1) and 8(a)(5) of the Act, in workplaces where employees are not currently represented by a certified or recognized Section 9(a) majority/exclusive collective-bargaining representative in an appropriate bargaining unit, the employer, upon request, has a duty to bargain collectively with a labor organization that represents less than an employee-majority with regard to the employees who are its members, but not for other employees.


According to the chief organizer for the steelworkers, “Our hope is that there will be a more pro-worker administration in place” and under that administration (appointed by a Democratic President), it will pass.


The Obama NLRB will likely ensure that minority unions have the opportunity to exist and thrive.  Coupling minority unions with EFCA and the anticipated “union of one” law, every single employee will be eligible to be represented by his or her own union of choice even though they are employed by the same company and perform the same job.