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Becker and Pearce in Place — EFCA and Major Shift Coming Fast?

Becker_10President Obama made a series of recess appointments including the highly controversial Craig Becker to the National Labor Relations Board (NLRB).  Becker is currently general counsel for the Service Employees International Union (SEIU) and for the AFL-CIO.  The U.S. Chamber of Commerce issued a statement pointing to Mr. Becker’s writings as “suggest[ing] a radical view of labor law that flies in the face of established precedent and case law and is far outside the mainstream. . . .  This recess appointment disregards the Senate’s bipartisan rejection of Craig Becker’s nomination to the NLRB. The business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.”

Many believe the President’s decision to override bipartisan Senate rejection of Craig Becker’s nomination is clear payback by the administration to organized labor.  The President also used the recess appointment procedure to place Mark Pearce, a labor lawyer and Democrat, to the NLRB.

The recess appointments of Becker and Pearce create major concerns for businesses.  One major concern for the business community is that the NLRB would bypass the legislative process and use NLRB procedures to ”enact” pieces of the Employee Free Choice Act (EFCA), including the highly controversial “card-check” provision.  Other issues that could be addressed by the new NLRB include:

  • employee use of e-mail for union organizing purposes (Register Guard);
  • the definition of “supervisor” and supervisory solicitation of union support (Oakwood Healthcare);
  • representation of non-union employees during disciplinary interviews (IBM Corp.); and
  • increased use of “extraordinary remedies” such as bargaining orders that bypass union elections (Abrahamson; Hialeah Hospital).

There is an ever increasing possibility that overturning these and other decisions outlined in the report will tilt the balance in labor law dramatically in favor of unions and their ability to organize employers and negotiate more favorable contracts during collective bargaining.  Employers would be well-advised to seek counsel on dealing with union organizing efforts as soon as possible.

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