As we reported over the weekend, Craig Becker received a recess appointment to the NLRB. The key question is what this appointment will mean to employers. Here are my thoughts:
- Do look for controversial decisions: The NLRB has not been able to rule on a controversial decision for over two years. There is a significant backlog of cases, all of which deal with controversial issues. After all, the only cases they’ve decided over the last two years are cases that members Liebman and Schaumber can agree on. As things stand now, there will only be panels with a majority of Democratic members. It’s not difficult to see how all of those controversial decisions will turn out (hint: you don’t want to be the company in these cases…). Very soon we should see some of the major decisions of the Bautista Board overturned (i.e. who counts as a supervisor, employee witnesses, the ability to file a decertification petition on the heels of a “neutrality” certification, use of email for solicitation, etc.) overturned.
- Don’t look for regulatory changes: The bogeyman most opponents of Craig Becker raised is the idea that he (along with Chair Wilma Liebman) will go on a regulation spree and attempt to implement the Employee Free Coice Act through regulation. I think it is unlikely that they will choose this path for a couple of reasons:
- First, most of what they want to accomplish does not require regulatory action. Shrinking the election time target from 42 days to 14 days or less does not require regulatory action – they can just issue a memo and change the time target. This would be the least likely change to get overturned and would have an immediate positive impact on union organizing efforts.
- Arbitration as a remedy? Just wait for the next Gissel bargaining order case and order arbitration after 90 days. Sure, it will be challenged, but so would a similar regulatory or statutory change. This is a much easier way to accomplish the same goal.
- Punitive damages? Same thing. Just award them and rule that it is the only way to restore the status quo ante. Again, it will get challenged but so would a similar regulation or statutory change.
- Expect “good behavior” for the next couple of months: The Becker appointment is controversial. Obama made a shrewd move by only appointing two Democrats and leaving the Board still one (Republican) vote short of its traditional 3/2 split. The likelihood is that negotiations will now begin on trying to get the original package of 2 Democrats and 1 Republican approved for full terms instead of recess appointments. The smart strategy for the newly appointed Democrat Board members is to stay on good behavior while Senate Democrats try to negotiate approval of full terms for a complete panel. If that doesn’t work in the next month or two, then expect to see some more controversial decision as a way to turn up the heat on Republican Senators.
- Scariest possibility? “Members Only” Bargaining: This somewhat contradicts my thoughts above, but this is the real game-changer that few people discuss. Worse than compressed election times and the host of other controversial decisions that the Board is likely to hand down over the next year, the one that frightens me most is rulemaking on “members only” bargaining units. If the Board wanted to hand unions an incredible gift (much better than the Employee Free Choice Act) they will regulate (or issue a decision) that unions can legally organize “members only” or minority bargaining units. This would allow a union to represent a small group of employees in a store or business location, irrespective of whether that group shares a community of interest or even approaches a majority of employees. It would allow a union to get a toehold in virtually any company it wished to target. This is truly the most important change a radical Board could make.
Stay tuned. We are in for some exciting times over the next several months. If you want to make sure your company is doing everything it can to continue to earn the privilege of a direct relationship with employees (no matter what happens on the legal or regulatory front) take a look at our most recent white paper, Left of Boom.
