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Employers Must Prepare for Seismic Changes in Labor Relations

Posted by Michael Rudman on May 4, 2010 4:55:00 PM

What Do Wilma Liebman, Mark Pearce and Craig Becker have in common?

a) All are attorneys who have worked for, or represented, unions.
b) All are members of the National Labor Relations Board.
c) All have expressed opinions favoring unionization.
d) All of the above.

Answer: D, All of the Above.

This may be one of the few cases when you're not happy about passing a quiz. The newly constituted National Labor Relations Board signals a seismic change in American labor relations, one that will unleash aggressive government oversight of the way in which you deal with employees and open the door to union organizing even in well-run companies.

Wilma Liebman is the Chairperson of the National Relations Board and has been on the Board since 1997 when appointed by President Clinton.  Prior to her Board experience, she served as counsel to a number of unions including the Teamsters.  She has been recently quoted as saying that during the recent Bush Administration, "the NLRB has lost its way"

Mark Pearce was recently sworn in as a Member of the NLRB as a result of a recess appointment by President Obama.  He has represented numerous union clients such as UNITE HERE in his private labor practice.

Craig Becker was also recently sworn in as a recess appointment.  He was most recently the General Counsel for SEIU (the nation's largest union) and his controversial views in favor of unionization led to his failure to achieve Senate confirmation to the NLRB earlier this year.

Associated Industries of Massachusetts opposed the nominations of Mr. Becker and Mr. Pearce because of concerns that they might seek to implement the most troublesome sections of the proposed Employee Free Choice Act (EFCA) in an administrative manner. EFCA would deprive workers of the right to a secret ballot in union elections and replace it with a "card-check" system under which a union would gain bargaining authority by submitting card signed by more than 50 percent of workers.

"New consideration is being given to the notion that a labor friendly board might attempt to implement some elements of EFCA under the existing statutory scheme," said a February 22 article in Bloomberg Law Reports. "This new majority bloc will undoubtedly pursue expansions of all of the remedial options - regardless of whether or not EFCA is ultimately passed into law"

What does Mr. Becker believe about union-management relations? He provides clues in a 1993 Minnesota Law Review article in which he argues that traditional notions of democracy should not apply in union elections and employers should be barred from attending NLRB hearings about elections and from challenging election results even amid evidence of union misconduct.

Here are several quotes from Mr. Becker's article, Democracy in the Workplace: Union Representation and Federal Labor Law:

 "...employers should be stripped of any legally cognizable interest in their employee's election of representatives."

"...employers should have no right to raise questions concerning voter eligibility or campaign conduct"

"...employers should have no right to be heard in either a representation case (election) or an unfair labor practice case"

"The (NLRB) should return to the principle that a union election is not a contest between the employer and the union . . .Unlike the other proposals however, it could be achieved with almost no alteration to the statutory framework."

"With only eight percent of people in the private sector represented by unions, how can anyone say that we should close off or narrow the means by which employees can obtain union representation?"

"...all employer speech to employees during working hours, at the workplace, is speech to a captive audience." 

It's obviously going to be a rough ride for employers during the next several years. The most effective response to all of these developments is good management, and that's where AIM comes in. Member employers from throughout Massachusetts look to us each year to help them understand the regulations with which they comply and develop systems both to meet the regulations and improve the productivity of their operations.

I invite you to join me at one of four AIM seminars in June called The Changing Face of Labor Relations. We'll outline the changes at the NLRB, discuss the clear and present risks they pose to your enterprise and review the preventive measures to consider in reducing your vulnerability. There will be plenty of time for questions and answers.

The sessions will take place in Marlborough and Burlington on June 2, Taunton on June 8 and Chicopee on June 14.

Topics: Associated Industries of Massachusetts, AIM, Employment Law, Massachusetts employers, Organized Labor, Employee Free Choice Act

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