Union Bailout Update

by | Feb 16, 2012 | Labor Relations Ink

A motion to dismiss an NLRB injunction was filed in federal court two weeks ago that could prove to be the first real test of the constitutionality of President Obama’s “recess without a recess” appointments to the NLRB. The new five-member Board requested its first 10(j) injunction on Jan. 25 against Renaissance Equity, the owner of a Brooklyn apartment complex.   Renaissance locked out its unionized employees 15 months ago after SEIU 32BJ rejected the company’s request for drastic wage and benefit cuts.  The Board’s injunction would force Renaissance to bring back locked out employees at 2010 pay and benefit levels. The company’s motion to dismiss that injunction argues that the Board “lacks the statutorily required quorum of three members necessary to authorize the filing of the petition” as the Senate was not technically in recess when the president appointed Sharon Block, Richard Griffin and Terence Flynn on Jan. 3. Meanwhile, on Capitol Hill, in an exercise Democrats called “a waste of time” and Republicans called “instructive,” the House Education and Workforce Committee held but another hearing on the labor board, this time to examine how the legal uncertainty surrounding the “recess” appointments impacts the American economy. Former Democratic board member Dennis Devaney testified that the Board will “again be faced with redoing or revisiting decisions. Such a development will once again undercut confidence in the fairness and due process of Board decision-making.” In June of 2010, the Supreme Court invalidated over 400 decisions made by a two-member Board in 2008 and 2009. But there is a major difference between the current Board and the Liebman-Schaumber Board of 2008-09. At that time the party lines were evenly split. Additionally members Liebman and Schaumber enjoyed a pretty collegial working relationship (although if your comparison point is the current Board, that’s not saying much). Thus the decisions made in 2008-09 were relatively non-controversial. The current Board is not constrained by either party lines or collegiality. One expects their decisions, like the ones in 2011, to continue to push the envelope as Chairman Pearce keeps his “eyes on the prize” for Big Labor. And that means even bigger headaches for employers. Stefan Marculewicz, a former regional Board attorney, testified that, “NLRB doctrine becomes part of the fabric of labor relations in our economy quickly as employers seek to comply with the law.”   He added, “if such doctrine is annulled in its entirety, as is possible here, its effects will be difficult and costly to remove.” Marculewicz expressed greatest concern for small businesses that will automatically adopt potentially invalid Board rulings because they do not have the resources to challenge them. In another exercise of Congressional tilting at windmills, Rep. Sandy Adams (R-FL) has introduced the Keeping Employees’ Emails and Phones (KEEP) Secure Act (H.R. 3991) that would add the following provision to the end of Section 9(c) of the NLRA: “In no circumstances shall the Board require an employer to provide to the Board or to a labor organization the telephone number or email address of any employee.’’  The much broader Workforce Democracy and Fairness Act (H.R. 3094), stalled and presumed dead in the Democrat controlled Senate, would allow employees to decide in writing which one form of personal contact information would be provided by the employer to a petitioning union. And finally, in what seemed a calculated thumb in the eye to the business community, the White House made two announcements on Monday; the nomination of Flynn, Griffin and Block to full appointments to the Board that would extend their terms to the end of 2016; and a planned campaign stop by the President at the now infamous Boeing Dreamliner plant in Everett, Washington this Friday.  The IAM local that represents Everett plant employees sought the Board charges that suspended production at a new second Dreamliner facility in South Carolina for most of last year. Those two stinging announcements from the White House came just days after the President released his $3.8 trillion budget proposal (that even most fellow Democrats can’t find the guts to support) which is chock full of union giveaways and was delivered last week with a heaping helping of class-conscious union-speak by President Obama.  Ironically, Obama plans to speak at the Everett plant on the importance of manufacturing jobs (except in Right to Work states) and increasing “American exports”.  (Presumably not the export of American jobs to escape an Administration hell-bent on resurrecting the Labor Movement through regulatory fiat.)

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