On March 27, President Obama made good on his promise to make recess appointments to vacant positions. Among the 15 appointments that were announced, two are of particular interest to the business community.
Craig Becker and Mark Pearce were appointed to vacant slots on the National Labor Relations Board, swinging the makeup of the Board from one Democrat and one Republican to three Democrats and one Republican. The party make-up of the board is neither unusual nor unexpected, but the nominees themselves, particularly Craig Becker, do not bode well for American businesses trying to work their way out of recession and create or retain jobs.
Becker has spent his entire career in the union movement and is currently the associate counsel for the Service Employees International Union. Pearce has spent the bulk of his career in union-side labor law, and while he is quite partisan, he pales in comparison to the avidly union-friendly Becker.
Why should anyone really care? The union-company relationship is a fragile one, adversarial by nature, and often highly emotionally charged. It is the charge of the NLRB to balance the parties often competing interests. Herein lies the rub.
In the face of the inability of labor to push the Employee Free Choice Act, aka Card Check, through Congress, the next best thing is to have NLRB membership that will pursue every regulatory and legal interpretation it can to get to EFCA-like rules without that nasty setback of Congressional authority.
So what is on the table and what difference will it make?
On average, it takes around 45 days for a union election to occur from the date signed authorization cards are presented to the NLRB. During that period, a company can meet with employees, express their points of view, and provide facts and information about unions and union representation; something the union has been doing for weeks or months to get cards signed. If a company is taken unaware by employees’ interests in unionization, it is a wakeup call, and the company has the opportunity to learn what is upsetting employees and how they may need to change.
The NLRB is authorized to shorten this process. A target of an election date within 10 days of card presentation means that the unions have had unlimited time, in advance of the card presentation, to talk to and educate employees about the advantages of unionization. The company will have 10 days to talk with employees about how they perceive unionization and educate employees on the other side of the issue. Becker is on record as believing that employers should have NO voice in a unionization election.
The NLRB is the arbiter of whether a company or union has breached labor law or precedent. These breaches, called Unfair Labor Practices, if upheld, can result in significant fines. Under EFCA, fines for ULPs committed by companies, but not unions, would have risen dramatically, thus theoretically pushing employers into acquiescence.
Everyone knows there are two ways to generate revenue; raise the price or sell more. EFCA was the raise the price option; NLRB appointments are the sell more option. By interpreting ULP’s in the most favorable light for unions, more fines may be levied, increasing company costs and risks on UPLs.
There are a myriad of “what if’s” in these recent Board appointments, but one thing is certain: a National Labor Relations Board with Becker as a member will push every envelope it can between now and the end of 2011 for the betterment of unions; not necessarily the betterment of the American workforce and certainly not the growth of American business.
Ron McDonald is a partner with Mark Hines in One2One Partners LLC, a labor and employee relations firm. He can be reached at 303-929-9180 or firstname.lastname@example.org.