Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

As Chairman Wilma Liebman’s term wound down to a close, late last week, the National Labor Relations Board issued a number of significant decisions reversing Board decisions from earlier administrations. Two of these -- Lamon’s Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011) and UGL-UNICCO Service Co., 357 NLRB No. 76 (Aug. 26, 2011) -- make it more difficult for employees to challenge a union’s status as their exclusive bargaining representative in the workplace.

A year after granting review and inviting briefs, in Lamons Gasket Co., the Board reversed the decision of the Board in Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), holding that a decertification petition will be barred “for a reasonable period of time after voluntary recognition.”   In addition, the Board clarified the standard for determining a “reasonable period of time” in connection with this analysis. 

In Dana Corp.,, the Board modified its “recognition-bar doctrine” to hold that an employer’s voluntary recognition of a union bargaining representative would not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) could file a petition soon after an employer voluntarily recognized a union, and in a departure from its past practice, the Board would not dismiss the petition as barred. Following the 45 day period, the recognized union would still enjoy a presumption of majority status for a "reasonable period of time.”

Regarding the 2007 decision, the Lamon’s Gasket majority declared:

[T]he extraordinary process established in Dana was, fundamentally, grounded on a suspicion that the employee choice which must precede any voluntary recognition is often not free and uncoerced, despite the law’s requirement that it be so. The evidence now before us as a result of administering the Dana decision during the past 4 years demonstrates that the suspicion underlying the decision was unfounded. Without an adequate foundation, Dana thus imposed an extraordinary notice requirement, informing employees only of their right to reconsider their choice to be represented, under a statute commanding that the Board remain strictly neutral in relation to that choice.

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Late last week, NLRB Acting General Counsel Lafe Solomon issued two Memoranda regarding expanded powers of the Board when it comes to monetary remedies. 

Memorandum GC 11-08 (March 11, 2011) outlines new methods for calculating backpay in Board cases.  First, it explains how Regions are to compute backpay to include interest compounded daily, consistent with the Board's change of direction in Kentucky River Medical Center, 356 NLRB No. 9 (Oct. 22, 2010).  It also instructs Regions to award additional financial offsets to cover the tax consequences of a lump-sum financial settlement, and to reimburse a discriminatee for the costs of any interim job search.  Moreover, it advises Regions to seek language in future remedial orders requiring the employer to advise the Social Security Administration of the allocation of any backpay award to the appropriate timeframes.  Finally, it indicates that the Board will be conducting training this week for Regional staff on these issues.

The other memo, Memorandum GC 11-07 (March 11, 2011), urges the Board to reconsider two 2007 decisions that require discharged employees to mitigate potential damages promptly. 

In Grosvenor Resort, 350 NLRB 1197 (2007), the Board held that a number of discriminatees did not fulfill their duty to mitigate their damages because they delayed their search for new employment by up to eight (8) weeks.  Based upon a review of earlier Board cases regarding mitigation and the circumstances of the case, the Board ruled that anyone in the case who had waited more than two weeks to commence a job search had waited too long.  The backpay awards for any such discriminatee was calculated from the beginning of his or her search.

In St. George Warehouse, 351 NLRB 961 (2007), the Board shifted the burden of production in mitigation cases to the General Counsel to establish that a discriminatee took reasonable steps to seek equivalent jobs in the relevant market. 

The new Memorandum asks the Regional Offices to identify cases that may be proper vehicles for overruling these two cases, thus:

• St. George Warehouse -- Regions are authorize to seek reversal of St. George Warehouse and the changed burden of production in all cases where a discriminatees' [sic] reasonable search for work is being litigated.  In such cases, Regions should object to the shifted burden of production and challenge the St. George Warehouse rule, bt should put forth the reasonable search evidence as required under that decision (consistent with this Guideline Memorandum's discussion of using receipt of unemployment beenfits as prima facie evidence).  In arguing against St. George Warehouse, Regions should use the legal argument set forth [herein] and may consult the Division of Advice for further assistance in litigating this issue.

• Grosvenor Resort -- Regions should determine, as part of their compliance investigation, what is a reasonable period of time for the discriminatee to begin to search for work.  Regions are authorized to seek reversal of Grosvenor Resort in cases in which the Region determines that a delay of more than two weeks is reasonable. 

Employers with cases pending at Regional Offices should take specific note of these Memoranda.  Others should also see them as the latest developments in a few trends -- most notably, the current Board's intent to overturn caselaw from the prior administration; and, to expand the Board's remedial powers.

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If you missed the hearings held this morning by the House Committee on Education and the Workforce, and weren't able to follow our live-Tweet stream of the proceedings, you can watch the archived webcast here.

In his opening statement, Chairman Rep. Phil Roe (R-TN) introduced the hearing thus:

That is why today’s discussion about the National Labor Relations Board is so important. The NLRB was created more than 75 years ago to perform two functions: first, to determine by free democratic choice whether workers desire union representation and if so, by which union; and second, to prevent and remedy unfair labor practices by employers and unions. 

The board serves as a quasi-judicial body. Its five members are chosen by the president, and the majority of members share the president’s views on labor policy. As a result, the board has generated a lot of debate over the years. However, that debate has recently been elevated to new heights since the board abandoned its traditional sense of fairness and neutrality and instead embraced a far-more activist approach. 

Numerous actions by the board suggest it’s eager to tilt the playing field in favor of powerful special interests against the interests of rank-and-file workers.

The statements of witnesses Philip Miscimarra of Morgan Lewis; G. Roger King of Jones Day; former General Counsel Arthur Rosenfeld; and NYU Professor Cynthia Estlund are available online.

As one can see from the witness statements and our live-Tweet transcript of the question and answer portion, there was much discussion at today's hearing about:

• The Acting General Counsel's initiatives promoting extraordinary remedies and pursuit of 10(j) preliminary injunctions;
• The Board's proposed rule-making to require all employers to post workplace notices;
• The pre-emption dispute between the AGC and four states regarding their state constitution secret ballot amendments;
• How passage of the Secret Ballot Protection Act would resolve that pre-emption dispute;
• The Board's recent trend of soliciting amicus briefs; and
• various other recent decisions of the Board.

We will continue to follow and report on these trends and developments as they unfold.

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Today's Washington Post's "Capital Business" section published a piece I wrote about what to expect from labor law developments during the coming months.  The intro:

When President Obama took office in early 2009, many expected significant legislative changes in the area of traditional labor law to facilitate union organizing in the private sector. But the new Republican majority in Congress on the one side and the Democrats' simple Senate majority and presidential veto pen on the other make passage of sweeping legislation like the Employee Free Choice Act -- or for that matter the converse Secret Ballot Protection Act -- all but impossible.

Employers should still expect significant changes, however, as the president will instead advance his regulatory agenda administratively through the National Labor Relations Board (NLRB) and the issuance of executive orders. If you're running a nonunion workplace today, these developments will make it easier for unions to organize your employees. Regardless of one's personal feelings about unions or union representation, there's no question that this increased government oversight, regulation and involvement will have a significant impact on large and small businesses alike.

Read the rest here.

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The Board recently sought briefs in Lamon Gasket Co., a case that will reconsider the 2007 Dana Corp. decision, 351 NLRB 434). Under that more notorious Dana decision, when an employer agrees to voluntarily recognize a union based on signed authorization cards, there is a 45 day window in which the employees may file a petition for an election to decertify the union or to support a rival union.

In a December 6, 2010 decision, the National Labor Relations Board has dismissed the Complaint in another case involving Dana Corp., 356 NLRB No. 49, which alleged that the Employer and the UAW had violated the Act by respectively rendering and accepting unlawful support.

The parties had agreed to a Letter of Agreement (LOA) which set forth ground rules for both parties
that would be applicable in any organizing campaign.  These rules included an employer commitment to "neutrality" during organizing, to provide employee information to the union and to provide access to Employer property upon union request.  The LOA further set forth certain parameters for future bargaining on particular topics, if and when the UAW was successful in its organizing efforts -- including contract duration, healthcare cost sharing, attendance and mandatory overtime. 

Back in 2004, the General Counsel issued a complaint alleging that the LOA provided unlawful assistance to the UAW in violation of Section 8(a)(2) and (1) of the Act and the UAW coerced employees in violation of Section 8(b)(1)(A).  An Administrative Law Judge dismissed the Complaint on both procedural and substantive grounds.  After accepting amicus briefs from over a dozen organizations, the Board issued a 2-1 decision dismissing the Complaint.

In approving the pre-recognition agreement in this case, Chairman Liebman and Member Pearce held: "The Board and courts have long recognized that various types of agreements and understandings between employers and unrecognized unions fall within the framework of permissible cooperation."  But the scope of the broader application of this decision is unclear, as the majority opinion also states:

We leave for another day the adoption of a general standard for regulating prerecognition negotiations between unions and employer. As the Supreme Court has observed, there are issues of labor law where the “’nature of the problem, as revealed by unfolding variant situations,’ requires ‘an evolutionary process for its rational response, not a quick, definitive formula as a comprehensive answer.’” Eastex, Inc. v. NLRB, 477 U.S. 556, 575 (1978), quoting Electrical Workers v. NLRB, 366 U.S. 667, 674 (1961).

Member Hayes dissented, refusing to distinguish the case from precedent.  According to his dissent, the holding in Dana threatens:

the establishment of collective-bargaining relationships based on self-interested union-employer agreements that preempt employee choice and input as to their representation and desired terms and conditions of employment.

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Last week, the National Labor Relations Board posted a Notice and Invitation to File Briefs in Case 30-CA-17185, Roundy’s Inc. and Milwaukee Building and Trades Council, AFL-CIO.

On November 12, 2010, the Board issued a Supplemental Decision and Order finding that the Employer violated Section 8(a)(1) of the National Labor Relations Act by prohibiting Council representatives from handbilling in front of 23 of its 26 stores. In so holding, the Board determined that the employer had only a non-exclusive property right to the areas where the union representatives were handbilling.

The Board severed the allegations concerning two additional store locations where the employer did possess an exclusive property right. In connection with these two locations, the General Counsel has alleged that the employer violated Section 8(a)(1) because it prohibited union access at those locations while allowing other individuals and organizations to use its premises for non-business-related activities. Thus, under the holding in Sandusky Mall Co., 329 NLRB 618, 623 (1999), enf. denied 242 F.3d 682 (6th Cir. 2001), the General Counsel argues that this discriminatory denial of access violates the Act.

The Board has invited the parties and interested amici to address the continuing viability of the Sandusky Mall standard, or preferable alternatives thereto. This in itself is noteworthy as increased union access to private employer property has been one of the more prominent developments sought by pro-labor elements following the apparent demise of the Employee Free Choice Act. It is obviously an area where a sympathetic Board majority can effectuate change in the absence of legislative action.

But the third question posed by the Board is also intriguing:

3. What bearing, if any, does Register Guard, 351 NLRB 1110 (2007), enf. denied in part 571 F.3d 53 (D.C. Cir. 2009), have on the Board’s standard for finding unlawful discrimination in nonemployee access cases?

Most people associate the Register Guard case with the permissible scope of an employer’s e-mail and internet usage policy as it pertains to union activity. As we have noted previously, repeatedly and recently, Chairman Liebman and the current Board are likely to overturn that portion of the Register Guard holding at their earliest opportunity. But Register Guard also announced what many saw at the time as a departure from the Board’s standards in analyzing discriminatory application of any workplace policy. The Board announced:

[A]n employer may draw a line between charitable solicitations and noncharitable solicitations, between solicitations of a personal nature (e.g., a car for sale) and solicitations for the commercial sale of a product (e.g., Avon products), between invitations for an organization and invitations of a personal nature, between solicitations and mere talk, and between business-related use and nonbusiness-related use. In each of these examples, the fact that union solicitation would fall on the prohibited side of the line does not establish that the rule discriminates along Section 7 lines.[] For example, a rule that permitted charitable solicitations but not noncharitable solicitations would permit solicitations for the Red Cross and the Salvation Army, but it would prohibit solicitations for Avon and the union.

The Court of Appeals for the D.C. Circuit, however, refused to enforce that portion of the Board’s Order. The Board’s solicitation of positions on this reasoning, however, indicates a clear desire to restate Board law on this point. So, the ultimate holding in the Roundy’s case may have application to a far broader range of allegations of discriminatory conduct by employers against union activity.

Briefs not exceeding 25 pages in length may be filed with the Board in Washington, D.C. on or before December 13, 2010.

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Back in August, the Board granted review in Lamon Gasket Co., a case that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract.

Dana was part of a series of rulings issued in the closing weeks of then Chairman Battista's term.  Many of these decisions split as 3-2 votes, and modified existing Board law.  Each contained a strong dissent by current Chairman Liebman.  Dana and the others provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairman Liebman testified at one such hearing, and has reiterated her views consistently many times since.   Back in April 2010, after President Obama announced his nominees for the Board, we suggested that Dana would be among the first decisions of the prior Board revisited.

And so it has been.  Some fourteen amicus briefs have been filed, following Board invitation, by parties including the AFL-CIO, the U.S. Chamber of Commerce, Senator Orrin Hatch (R-UT), the National Association of Manufacturers (NAM), the SEIU, and Congressmen John Kline (R-MN) and Tom Price (R-GA).  The arguments for and against expressed in these briefs shape up essentially as one might expect from a referendum on the Employee Free Choice Act's card-check provisions.  Those in favor of preserving the Dana holding argue that it is the only way to ensure that employees have a free and fair opportunity to vote for or against union representation in a secret ballot election.  Those who would have Dana overturned, argue that the Board has long recognized the principle of voluntary recognition by other means and that the "open period" for decertification announced by Dana only creates delay in the bargaining process, serving to frustrate the will of the majority of employees.

Then-Member Liebman's dissent in Dana provides a clear indication of where this Board is likely to go in Lamon Gasket:

The voluntary recognition bar, as consistently applied for the past four decades, promotes both interests: it honors the free choice already exercised by a majority of unit employees, while promoting stable bargaining relationships. By contrast, the majority's decision subverts both interests: it subjects the will of the majority to that of a 30 percent minority, and destabilizes nascent bargaining relationships. In addition, the majority's view fails to give sufficient weight to the role of voluntary recognition in national labor policy and to the effect of existing unfair labor practice sanctions to remedy the problems the majority claims to see.

What will be more interesting and important to watch is the political fall-out of the Board's reinforcement of voluntary recognition, and what impact that will have on the labor law debate over the role of the secret ballot.  Stay tuned...

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On Tuesday, Republicans gained a majority in the House, picking up at least 60 seats with several more races remaining too close to call. Republicans also picked up 6 seats in the Senate but fell short of gaining the majority. MLA’s client advisory on the election results is available here. What impact might the significant Republican gains in the Congress have on developments in labor law?

The widely held consensus suggests that the most ambitious proposed piece of labor legislation – the Employee Free Choice Act – is “dead.”   The Las Vegas Journal Review was quick to celebrate this notion in an op-ed “Card Check: R.I.P.”  Of course, there had been no chance that the bill was going to pass in its original incarnation as early as March of last year.  The bill, most recently introduced as H.R. 1409, S. 560, would would amend the National Labor Relations Act to make it easier for unions to organize employees. The bill would also require interest arbitration of first contracts after 120 days and would strengthen penalties for certain unfair labor practices. 

The card-check provisions, however, faced vocal opposition from Republican and moderate Democrat Senators alike – failing to obtain enough votes for cloture even when the Democratic caucus controlled 60 votes in the Senate.   It is unlikely that there will be enough votes to pass the bill again in the House (as was done in 2008) – especially since, as of this time, at least forty-five co-sponsors of H.R.1409 will no longer be serving in the 112th Congress.

There have also been measures introduced to guarantee the availability of the secret ballot in union representation elections. Tuesday, four states passed initiatives to that effect.  These measures will face stiff Court challenges on the grounds of federal preemption of labor law.  But last year, federal legislation was also introduced as a bar to EFCA’s card-check provisions. The Secret Ballot Protection Act (H.R. 1176, S. 478) would make it unlawful for an employer

to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9 [of the NLRA].

The bill was introduced in the 111th Congress by Rep. John Kline (R-MN) -- the ranking member of the House Committee on Education and Labor.  Consistent with our earlier speculation, this week Rep. Kline expressed his interest in chairing that Committee in the Republican-controlled House. It is unlikely that his chairmanship and the Republican House majority alone will be sufficient to see legislation like this pass, particularly in light of the Democratic Senate and Presidential veto, but it may be enough to take the issue of card check recognition off the table either way during any legislative discussions.

Since this split government will make major legislative initiatives difficult, it is entirely likely that we will continue to see changes advanced by administrative and executive action.  Early in this administration, the White House showed a willingness to advance elements of its labor agenda via the issuance of executive orders. Moreover, the new National Labor Relations Board, with a weighted 3-to-1 Democrat tilt, has already been more aggressive – urging the increased use of preliminary injunctive relief, significantly expanding traditional Board remedies and granting review in cases expected to invite reversals of Board precedent. We may reasonably expect these trends – as well as an increase in administrative rule-making power – to continue. During the next few weeks, we will explore these issues here in further detail.

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Yesterday, the NLRB issued its annual summary regarding case production for the fiscal year which ended on September 30, 2010.  In the 2010 fiscal year, the Board issued 315 decisions, 118 of which were decided in the month of August alone.  August was particularly productive because the Board sought to resolve as many cases as possible prior to the expiration of Peter Schaumber’s term as a member of the Board.  At the close of the fiscal year, the Board had 264 cases pending before it, which reflects a 20% increase from the 193 cases pending at beginning of the fiscal year.  The Board has also resolved 70 of the 96 cases pending before the courts at the time the Supreme Court issued its decision in New Process Steel denying the Board authority to issue decisions with only two members.

In addition, the press release highlighted notable decisions issued by the Board this past year.  They included:

- Resolution of the oldest unfair labor practice case at the Board, KenMor Electric Company (formerly known as Houston Stafford), a Texas case involving an association of non-union electrical contractors that arrived at the Board in 2001. The Board found that the association violated the Act by maintaining a job application referral system that interfered with the statutory rights of job applicants who were union members and “salts".

- Resolution of the oldest election case at the Board, Independence Residences, in which the Board found that a union victory in a 2003 election at a New York home for disabled workers should be certified, notwithstanding a state law that prohibited the employer’s use of state funds for union-related activities.

- The Board’s determination that a union protest was lawful activity in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, where union members held large banners announcing labor disputes in front of secondary employers in Arizona.

- The Board’s determination that a union’s practice of requiring a dues objector to lodge objections every year, rather than granting a permanent reduction in dues, was unlawful, in International Association of Machinists and Aerospace Workers, AFL–CIO.

- The grant of review in a case, Lamon Gasket Co., that will reconsider a 2007 Board decision (Dana Corp., 351 NLRB 434). Under Dana, when an employer agrees to voluntarily recognize a union based on signed authorization cards, it may advise employees that they have a 45 day window to file a petition for an election to decertify the union or to support a rival union. If it does not give employees this notice, any contract negotiated with the recognized union will not serve to bar a future election petition during the life of the contract. The Board also invited briefs from any interested parties in the case.

In foreshadowing what to expect in the 2011 fiscal year, the Board's recent press release notes that cases still pending resolution by the Board deal with issues such as:

the immigration status of workers who were victims of unfair labor practices, union access to employer property, electronic posting of Board remedial notices, and compound interest on back pay awards.

Stay tuned, as we will be providing information, insights and resources on these issues as the Board addresses them.

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Today's National Law Journal carries a piece by yours truly regarding the potential labor law implications of the growth of social media use in the workplace.  Many astute observers have written on the intersection of social media with employment and privacy law.  Today's NLJ piece focuses on traditional labor law principles:

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

You can read the entire piece here.

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We noted in May that the UAW had begun the process of challenging a 2004 decision by the National Labor Relations Board related to teaching assistants at private universities. Today the NLRB issued a press release announcing that the Regional Director had dismissed the petition, which sets the stage for the UAW to request that the Board reverse Brown University, 342 NLRB 483 (2004) and remand the petition to the Region for an election. 

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The National Labor Relations Board today invited interested parties to submit amicus briefs in two groups of cases. Those cases involve whether an employer should be required to post remedial notices electronically and whether compound interest should be applied to monetary awards ordered by the Board. The request indicates that the Board is considering changing existing law in these areas.

 The text of the notice is as follows: 

The National Labor Relations Board is inviting all interested parties to file briefs in two sets of pending cases that involve significant issues for employees, employers and unions. 

 One set of cases raises the question of whether Board-ordered remedial notices should be posted electronically, such as via a company-wide email system, and if so, what legal standard should apply. Such notices, which announce steps taken to remedy violations, are now typically posted on workplace bulletin boards. A change in policy would require the Board to reconsider its decision in Nordstrom, Inc., 347 NLRB 294 (2006).

 The cases are Arkema, Inc., 16-CA-26371; Stevens Creek Chrysler Jeep Dodge, Inc., 20-CA-33367, and Custom Floors, Inc., 28-CA-21226.

 Another set of cases asks whether the Board should routinely order compound interest on back pay and other monetary awards in unfair labor practice cases, and if so, what the standard period should be for compounding (daily, quarterly, annually?).

 The cases are Bashas’ Food City, 28-CA-21435; Atlantic Scaffolding Company, 16-CA-26108; and Kentucky River Medical Center, 9-CA-42249.

 Briefs in both issues must be filed with the Board in Washington, D.C. on or before June 11, 2010, and should be no longer than 25 pages. For further information on filing, please contact the office of NLRB Executive Secretary Lester A. Heltzer at (202) 273-1067.

 The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

In a recent post, we noted that the Board may be considering changing its rules from ordering simple interest on monetary awards to requiring compound interest. In San Juan Teachers Assn., 355 NLRB No. 28 (Apr. 30, 2010), the Board stated in a footnote: “we are not prepared at this time to deviate from our current practice of assessing simple interest.” (emphasis added). 

With regard to electronic notice posting, Chairman Liebman had asserted in Nordstrom, Inc., 347 NLRB 294 (2006) that electronic posting should be required “when an employer customarily communicates to employees via an intranet.” The Bush-appointed majority in the Nordstrom case had rejected Ms. Liebman’s approach.

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Our friends at Workplace Prof Blog note that the UAW appears to be readying a test case for the Obama Labor Board. The issue is whether teaching assistants at a private university are “employees” within the meaning of the National Labor Relations Act and therefore have the right to form a union and engage in collective bargaining. The New York Times reports that the union has presented New York University with a petition requesting recognition on behalf of approximately 1,600 graduate assistants.

NLRA coverage of graduate assistants has been one of the see-saw issues for the Board over the last decade. From the early 1970’s to October of 2000, the Board determined that graduate assistants were not “employees” within the meaning of the Act. In New York University, 332 NLRB 1205 (2000), the Board, with a majority of members appointed by President Clinton,  reversed course and extended jurisdiction. The union’s victory was short-lived, however. The Bush Board returned to the earlier interpretation in Brown University, 342 NLRB 483 (2004).

The Times gives the rest of the story: “After the labor board’s 2004 ruling took away their right to unionize and bargain for a contract, the assistants were unable to persuade N.Y.U. to sign a new contract.”

And so the union is back, obviously hoping the pendulum will once again swing. Its hopes are no doubt raised by the dissenting opinion in Brown University, in which then-Member Wilma Liebman (now the Board’s Chair) wrote that treating graduate assistants as outside the Act’s coverage is “woefully out of touch with contemporary academic reality.”

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Mr. Spencer's piece includes additional items regarding Department of Labor, OSHA, and Wage & Hour administration, classification of independent contractors and pending DOL regulatory actions.  You can read the entire piece here.

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Union-side labor attorneys Craig Becker and Mark Gaston Pearce were sworn in on Wednesday, April 7, 2010, as Members of the National Labor Relations Board. Messrs. Becker and Pearce, Democrats, were the subjects of controversial recess appointments by President Obama on Saturday, March 27, 2010. They join Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber to bring the Board within one Member of its full five Member capacity. President Obama previously nominated Republican Brian Hayes to be the fifth Member, but declined to appoint him with the others. This leaves the Board tilted disproportionately 3-1 in favor of Democrats, ensuring a Democrat majority on all panels hearing cases.

What should employers expect? With all the commotion surrounding the recess appointments, and the Obama administration’s likely preference to negotiate Senate approval of all three nominees for full-terms, the Board may continue to avoid taking controversial actions for the immediate time-being. However, in time, employers are likely to note a significant shift in NLRB activity in favor of employees and organized labor’s positions. Members Becker and Pearce join Chairwoman Liebman as a majority bloc distinctly in favor of expanding the rights of unions and workers. This Board is certain to reverse several precedents set by the Bush administration's Board.

As we noted in a July 2009 Client Alert (“What to Expect from President Obama’s Labor Board”), employers wondering what Board positions might be vulnerable to reversal should look to the many NLRB decisions issued during September 2007. Issued in the closing weeks of then Chairman Battista's term, many of these decisions split as 3-2 votes. Each modified existing Board law, and each contained a strong dissent by the current Chairwoman. They provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board. Chairwoman Liebman testified at one such hearing, and has reiterated her views consistently many times since.

Among the issues likely to be revisited are those addressed in the following September 2007 cases:

• Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), wherein the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative will not bar the processing of a decertification petition filed during the first 45 days after recognition.
• Toering Electric Co., 351 NLRB No. 18 (Sept. 29, 2007), wherein the Board significantly altered its standards in “salting” cases. Salting occurs when a union organizer seeks employment at an employer solely for the purpose of organizing the other employees and obtaining recognition of the union. This practice is lawful and previously “salts” were protected by the NLRA, but in Toering, the Board held that individuals who do not genuinely seek an employment relationship do not qualify as “employees” protected by the Act.
• Jones Plastic & Engineering, 351 NLRB No. 11 (Sept. 27, 2007), wherein the Board clarified that advising strike replacement workers that they are employed “at-will” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. A previous Board case, Target Rock, 324 NLRB 373 (1997), had suggested otherwise.
• BE&K Construction Co., 351 NLRB No. 29 (Sept. 29, 2007), wherein the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act. BE&K confirmed that this is the case even if the employer’s motive for bringing the suit is to retaliate against a union, and even if the suit is ultimately dismissed.

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