Glenn Spencer, Executive Director of the U.S. Chamber of Commerce’s Workforce Freedom Initiative published a piece yesterday in The Metropolitan Corporate Counsel entitled: "Union Agenda Implemented Behind the Scenes." In the piece, Spencer outlines a number of items on "the union wish list." Among the items included in the piece, with some excerpts here, are:
From Spencer’s piece:
Aside from Card Check, a critical priority for organized labor has been to secure a staunchly pro-union majority on the National Labor Relations Board (NLRB). With President Obama’s recess appointment of Craig Becker in March, this goal has been realized. While Becker failed to win a full five-year term after being rejected in a bi-partisan vote by the Senate, his ascension to the NLRB gives the pro-union forces a 3-1 majority on the Board. With this slanted majority, the NLRB will seek to overturn numerous decisions from past years such as Dana/Metaldyne , which established the primacy of the secret ballot over Card Check and Oakwood Healthcare , which clarified which workers could be considered supervisors.
In our inaugural post, we discussed a number of case holdings — including those in Dana Corp. and Oakwood Healthcare (aka the "Kentucky River" cases) — likely to be challenged by the new Board. Readers of this blog can follow related developments via our "Bush Board Reversal," "NLRB Administration" and "NLRB Decision" tags.
The NLRB will not, however, simply sit back and wait for the appropriate cases to come its way. Current Chairwoman Wilma Liebman, a Democratic appointee, has made it clear that the Board will engage in active rulemaking for the first time in nearly 30 years. Rulemaking could change NLRB policy in a number of ways, most significantly by shortening the election window during union organizing campaigns from an average of approximately 38 days to as little as five or 10. The Board may also place additional limits on employer speech rights and attempt to give union organizers access to an employer’s workplace. Finally, the NLRB could even issue rules requiring the recognition of non-majority "mini-unions" that represent only a fraction of a potential bargaining unit. Outside of rulemaking, the Board is also likely to make greater use of Gissel bargaining orders, essentially forcing employers to recognize a union even where it has failed to demonstrate majority support.
We agree that employers should follow these likely developments closely. We outlined areas where the Board may engage in rulemaking — like some mentioned above, as well as more aggressive pursuit of preliminary injunctions and civil damages — in our February 22, 2010 Bloomberg Law Reports piece. Readers may follow related developments via our "NLRB Rule-Making" tag.
The White House itself has gotten into the action with a series of pro-union Executive Orders signed in early 2009, which are now coming to fruition through the regulatory process. And a potential new Executive Order would impose much of the unions’ sweeping social agenda on a wide swath of the economy by rigging the government contracting process. Referred to as the "High Road" contracting initiative, this new policy would give a bonus in contracting scores to companies that provide their employees with a "living wage" and offer employer-sponsored health and retirement benefits as well as paid sick leave. The catch is that these wages and benefits would have to be offered to every worker at a particular company – not just those working on the contract. This would effectively impose "living wage" requirements on more than 20 percent of the nation’s workforce. The result would be decreased competition for government contracts and higher costs to the taxpayers.
We are monitoring developments regarding the "High Road" contracting initiative, and have issued advisories on the Executive Orders already issued by the President — most recently outlining the final rule issued by the FAR regarding use of Project Labor Agreements on large-scale construction projects. Readers may follow related developments via our "Executive Orders" and "Government Contracting" tags.
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.