NLRB Could be Stopped Tomorrow

That is correct. The United States Supreme Court has held that the NLRB can make no decisions on any cases if there is not a minimum of three Board members.

Obama made the mistake of fighting the Republicans on appointments to the Board and insisted upon “stacking” the NLRB with extremely pro-union appointees such as Craig Becker. I am sure he did this at the request of people like Andy Stern of the SEIU.

However, that strategy is about to backfire on the Unions.

There is no way Obama is going to get any further appointments to the NLRB.

Further, and most important, the one Republican appointment holds in his hands the ability to stop the NLRB in its tracks. He can prevent the Boeing case from being decided by an Obama NLRB. He can stop the new rules for “quickie elections” from ever being implemented. He can stop NLRB injunction cases being filed against companies. Yes, this ONE person can stop all this.

How you might ask – by resigning his seat on the NLRB.

That one action brings the NLRB down to just two members. And as we know from the U.S. Supreme Court, two members have no authority to act.

Therefore, tomorrow, this agency can be brought to its knees with the stroke of a pen from one person.

Brian Hayes is the one Republican appointee who has it within his power to shut down the NLRB until next November’s election.

Obtaining an appointment to the NLRB is not easy to do and it will be extremely difficult for Mr. Hayes to walk away from a position he has arguably worked his whole life to obtain.

Lets us all hope that Mr. Hayes is willing to sacrifice his appointment in the hope that his actions will get him reappointed during a time period when the NLRB no longer has such an obvious pro-union tilt.


NLRB Changes Needed

  • Below is Washington Times in article and my thoughts as to what is needed:

  • As a labor lawyer who practices before the NLRB on a regular basis I can tell you that this is one of the most bias government agencies that exist.  From the unreviewable discretion of the General Counsel to prosecute cases, to the Administrative Law Judges who hear these cases and consistently rule in favor of the General Counsel, to the employees who work for the agency some of whom have in the past referred to lawyers like myself as “management pigs” makes this agency a VERY pro-union operation.  But you cannot blame the agency, the General Counsel and his Regional Directors or the employees who work there.Congress in the 1930’s passed the National Labor Relations Act with the specific agenda of helping unions organize companies.  Although the statute was amended in 1948 to make it “more balanced” under the Taft-Hartley amendments, the simple fact is that Congress did not go far enough.

    Repeal of the statute is what should happen.  Assuming that this is not possible, then MAJOR changes need to be made.  Here is MY LIST for Congress to consider:

  • First is to abolish the trials by the Administrative Law Judges.  All trials should be before Federal Magistrates in Federal Court.  Appeals of these decisions could then go to the NLRB Board for review to determine if the decisions comport with Federal Labor Policy set by the NLRB.  This one change would remove the bias out of the legal trials and be a real deterrent to the POWER of the General Counsel to issue Complaints knowing they have a 90% chance of winning “credibility” issues before these Administrative Law Judges and, therefore, winning the case.
  • Second is that decertification elections (elections to throw the union out filed by the employees who work there) should not be allowed to be “blocked” by a simple unfair labor practice charge being filed by a Union that costs the Union a total of a postage stamp.  I have seen decertification petitions delayed for YEARS as the Union filed one unfair labor practice charge after another, each requiring an investigation, and each “blocking” the election to decertify the Union.
  • Third is that Unions should not be allowed to use “Requests for Information” during negotiations to harass the Company.  I have seen small companies in negotiations have to produce over 10 THOUSAND documents in response to one union request after another being used by the Union as nothing but pure harassment.  The design on the Union’s part is to cost the Company MONEY.  There should be a rule that Companies must only turn over documents to the Union where the Union can establish by CLEAR and CONVINCING evidence that without the information the Union cannot make any proposals to the Company on the matter.  There should be a limit as to the number of document requests the Union can make and if the Union goes over that number, the Company is not required to respond. 
  • Fourth is that there should be a rule that the negotiations go for no longer than 6 months and after 6 months, if there is no agreement, then the Company is free to unilaterally implement its last and final offer made no later than 5 months after negotiations start.  I have seen negotiations go on for YEARS as the Union trying to avoid “impasse” making one proposal after another as small as one penny changes.

    These are just a handful of needed reforms.

    Ron Mason, Mason Law Firm, Dublin Ohio

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 .

Labor acts as I predicted it would


Big Labor is now doing exactly what I predicted it would do in an earlier post.  It is seeking revenge on specific Democrats for their failure to support and pass the Employee Free Choice Act a/k/a EFCA.

Here is a quote published today in a labor publication regarding the AFL-CIO Executive Council meeting in Florida:

“The labor movement is pissed off, in so many words, at the Obama administration…”

“The council members also didn’t spare the Senate. The federation’s formal backing of its Arkansas affiliate’s endorsement of Democratic Lieut. Gov. Bill Halter in his planned May 18 primary showdown against Sen. Blanche Lincoln sends that message. So does a pledge of substantial money from AFSCME, CWA, SEIU, the Steelworkers and the Teamsters to Halter’s campaign.”

First it was Senator Bennett in Colorado and now it is Senator Lincoln in Arkansas.  The Unions have a hit list and they intend to carry out their political executions in public of all Democrats in Congress who failed to follow the mantra of EFCA.  The unions feel that these people betrayed them and they are not going to rest until they send every elected Democrat a message not to ever get on the wrong side of them again.

From a union standpoint, who can blame them?  The Democrats blew the biggest opportunity they have had in probably 30 years to reverse the decline of organized labor and the labor unions are not going to let the Democrats forget it anytime soon.  Trumka was played like a fiddle as he bowed to the White House demands that legislatively healthcare must go first through Congress. 

Unbelievably, Obama still won’t let healthcare go.  While the County wallows in 17% in real unemployment, instead of concentrating on fixing the economy, Obama still can’t let healthcare and a new trillion dollar deficit program go.

Meanwhile, Labor now sees a 40% tax on their own healthcare benefits in the healthcare program Obama wants to pass.  Further, the backroom deals to exempt labor until 2015 probably won’t survive the public’s light on these “backroom” deals Obama cut to try and get it passed.

So the next question is if Obama will be on this same list to be defeated when it is his turn to run?  Certainly, he is the primary person to be blamed for the failure of EFCA to pass as he placed it at the very bottom of his legislative agenda and given it nothing but lip service.  I seriously doubt if Hillary Clinton would have made the same mistake as Obama did.  She learned many years ago that major reform of healthcare is a bottomless pit politically.  Whereas, Clinton would have known that passage of EFCA would have brought tons more money to the Democrats in power. 

Therefore, one has to ask Big Labor, what exactly did you guys buy for $400 MILLION in campaign contributions?  I really think they need to ask for a refund!  Clearly there must be a buyer’s remorse.

Misc. Mondays: Obama’s New Board Members

We knew this day was coming.  It’s almost finally here.  Obama announced his intention to fill two of the three (out of 5) open seats on the National Labor Relations Board (the Supreme Court of judges for labor law issues).  And without much surprise, he announced two lawyers who happen to represent labor unions – to go along with Wilma Liebman who he appointed Head of the Boardand who used to represent labor unions.  One of the appointees, Craig Becker is the Associated General Counsel for both the SEIU and the AFL-CIO.  The other is Mark Pearce, who is in private practice in New York and represents trade unions in labor and employment law issues. 

Click here for a fullbio on these two appointees courtesy of Ross Runkle’s LawMemo Blog.

Now just 1 seat is left to fill, and by law that has to go a Republican.  But by when must it be filled is a better question than who will get it.  The Board has been operating as a 2 person Board for over a year – 1 Republican and 1 Democrat.  Obama just announced he will fill it with 2 more people – both Democrats.  Obviously the Board is the most left it can be at this moment.  So there really isn’t any incentive for Obama to pick that last Republican.  I expect to see many 3-1 decisions in favor of Unions for quite some time.

UPS Workers Cry Union Intimidation

Here is just one situation that sheds light on the intimidation and harassment that employees endure during card check organization drives – the same card check drives that are a part of the Employee Free Choice Act.

National Right to Work Foundation attorneys filed unfair labor practice charges against Teamsters Local 776 for initiating a coercive organizing drive to unionize a UPS Freight facility. 

Here’s the legalese of the situation.  Initially, the workers rejected the union through a secret ballot election.  After the union was rejected by the employees, the Teamsters again tried to organize them through a “card check” organizing drive.  The Teamsters claimed they had a majority of the employees sign a card and presented those cards to management and demanded that UPS recognize the union as the bargaining representatives for the employees.  The employees immediately tried to decertify the union through an election, but the Board ruled that only one election could take place per year.

Under the Dana/Metadyne decision, employees have the right todemand a secret ballot election immediately following unionization via card check organizing as a way to counteract the employee intimidation and harassment at the hands of aggressive union operatives that frequently occurs during card check campaigns.  But, the NLRB said that only one secret ballot election could take place in any given bargaining unit during a 12-month period.  Therefore, these UPS workers were denied the opportunity to vote out the union.

This lawsuit has major implications across a wide range of labor laws, and I will keep everyone on top of the decisions as they are released.  Thank you NRTW for this update.