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Get ready for radical new interpretations of labor law



President Obama on Saturday announced his intention to make 15 recess appointments, including two Democratic lawyers to serve on the National Labor Relations Board: Mark Pearce, a Buffalo, N.Y., labor lawyer, and Craig Becker, a law professor and SEIU and AFL-CIO counsel. Becker had drawn vehement opposition from business groups, not just for his union affiliations -- he becomes the first NLRB member to have actually been a union employee -- but for his writings* that argued employers have no legal standing when unions attempt to organize a workplace. (We've been covering the nominations for months in posts at Shopfloor.org, the blog of the National Association of Manufacturers.)

Two former NLRB members today predicted serious consequences of the Becker and Pearce appointments, which makes the NLRB's current make-up four Democrats to one Republican. Peter Kirsanow, a Cleveland attorney who served on the NLRB from 2006-2007, commented at National Review Online's The Corner:

[The] Board could adopt rules recognizing minority unions, implement "quickie" elections, grant unions greater access to employees for organizational purposes, restrict employer options during union campaigns and elections, recast supervisors' roles during election campaigns, leverage neutrality/card-check agreements by overturning certain Bush Board decisions, and increase the use of mail-ballot elections.

John Raudabaugh, a board member from 1990-93, issued an analysis from his law firm, Nixon Peabody, arguing that, among other steps, a "reenergized, partisan" NLRB might shorten the time span for representation elections and reverse a series of major decisions, which he lists. Also:

Additional targets. "Quickie" elections in less than the traditional 42 days from the filing of an election petition; limitations on employer speech; liberal findings to justify re-run elections, bargaining orders, special damages, and full back-pay awards; liberal interpretations of information requests to "facilitate" bargaining; and upending the common-law of contract interpretation to require bargaining and/or prevent unilateral management implementation of anything not clearly and unmistakably waived by the union by express contract language in the applicable collective agreement.

Inside Higher Ed also reports that a newly active board could reverse a 2004 decision that held Brown University graduate students could not unionize. Unions like SEIU would love another opportunity to unionize grad student teaching assistants.

* University of Minnesota Law Review, 1993, "Democracy in the Workplace: Union Representation Elections and Federal Labor Law." (Via FrumForum)

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.