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Obama Administration Appoints Two Union Lawyers to NLRB

Labor & Employment Update David B. Kern, Fred Gants

On March 27, 2010, President Obama announced recess appointments to the National Labor Relations Board ("NLRB") of two lawyers with strong union ties, Craig Becker and Mark Pearce. These appointments could spell trouble for employers.

The NLRB has been operating for the past 27 months with only Chairman Wilma Liebman, a Democratic appointee, and member Peter Schaumber, a Republican appointee, while three positions have remained vacant. Liebman and Schaumber have continued to decide over 80 percent of the cases presented to them on the basis of established Board law, but the legitimacy of decisions issued by only two members of the NLRB is in litigation and hotly contested. A year ago, President Obama nominated Craig Becker and Mark Pearce, both Democrats with strong ties to organized labor, to two of the vacant seats along with former management attorney and current Republican Senate staffer Brian Hayes to the third. Typically, three of the five members of the NLRB will be of the same political party as the sitting president.

In October of 2009, Senator John McCain placed a hold on Becker's nomination citing Becker's writings on the National Labor Relations Act (the "Act"), which have been labeled by some as extreme. Becker now claims his writings had been designed to foment debate. The President renominated Becker in January of 2010. Although Becker's nomination was approved by the Senate Health, Education, Labor and Pensions Committee, it was not approved by the full Senate due to a Republican filibuster. Notably, when he appointed the two Democrats on March 27, President Obama did not also appoint Republican Hayes. The recess appointments are effective immediately.  Therefore, there are now four sitting members of the NLRB, three of whom are Democratic appointees who are expected to shift NLRB decisions toward the interests of labor unions.

Mark Pearce has spent his career with law firms that represent unions. Craig Becker most recently has been serving as Associate General Counsel of the Service Employees International Union ("SEIU") and as a staff attorney of the AFL-CIO. He has practiced and taught labor law for many years and law reviews he has authored reflect strong views of union and employee rights under the Act and the Board's ability to change current NLRB procedures. For example, Becker wrote a 1993 Minnesota Law Review article asserting that traditional notions of democracy should not apply in union representation elections. He asserted that employers should be barred from questioning voter eligibility and should be precluded from challenging election results even if there is evidence of union misconduct. Becker asserted that elections should be held away from the work site on neutral ground or that mail ballots should be utilized instead of secret ballot elections. He also argued that any required meeting held by an employer with employees in connection with a union election should be grounds for overturning the vote if the union were to lose, regardless of what the employer says at the meeting. Becker contended that a union should have equal access to the employer's property during a union campaign if the employer distributes campaign literature to its employees. Many observers have expressed concern that Becker will decide NLRB cases or issue rules to make changes that have stalled in Congress, like those in the Employee Free Choice Act that would confer union representative status based on authorization cards instead of secret ballot elections.

It is likely that, once seated, this four member Board will move to undo many prior Board decisions that were considered unfriendly by organized labor. These include cases addressing a host of "hot button" issues, such as:

  • The definition of a supervisor under the National Labor Relations Act.
  • The right to fellow employee representation at an investigatory interview in a nonunion setting.
  • The right of employees to an NLRB election following the employer's voluntary recognition of a union.
  • The inclusion of temporary employees obtained from an agency among eligible voters in NLRB-conducted elections and under collective bargaining agreements.
  • Whether teaching assistants at universities or residents at medical schools are employees entitled to unionize under the Act.

If you have any questions regarding these NLRB developments or traditional labor law generally, please contact David Kern at / (414) 277-5653, Fred Gants at / (608) 283-2618 or your Quarles & Brady attorney.