Unions Could Benefit From Labor Board's Power Shift

April 2, 2010

MELANIE TROTTMAN And KRIS MAHER

The National Labor Relations Board, now controlled by Democrats after two recess appointments, is gearing up for a series of decisions that could give unions an upper hand in labor agreements, particularly in union-organizing contests.

Union leaders and business groups are focused in particular on the potential role of Craig Becker, a lawyer for the AFL-CIO and Service Employees International Union who was appointed to the board last week by President Barack Obama over Republican objections. Mr. Becker will be the first NLRB member to come directly from a union.

The appointments of Mr. Becker and Mark Pearce, another Democrat, will give Democrats three of the four filled spots on the board. A fifth spot remains vacant and could be filled by pending Republican nominee Brian Hayes, whom Mr. Obama didn't include in last week's recess appointments.

Organizing is a critical issue for big labor unions, which represent 7.2% of workers at private companies. Just over half of all unionized workers now are employed by government agencies.

Among more than 200 pending cases at the NLRB are disputes over whether workers with some supervisory duties should be allowed to join unions, how much access union organizers can have to speak to workers on company property, and to what extent an employer can ban a worker from using email to communicate about union activities while permitting use of email for other non-work-related communication.

Management-side lawyers and business groups say a Democrat-majority board could make incremental changes that begin to approach the impact of the Employee Free Choice Act, a bill stalled in Congress that would make it easier for unions to organize workers.

"The business community should be on red alert for radical changes that could significantly impair the ability of America's job creators to compete," said Randel Johnson, senior vice president of labor for the U.S. Chamber of Commerce. The Chamber and other business groups have argued that the bill could harm employers financially by forcing them into labor contracts with terms they can't afford.

Elizabeth Bunn, organizing director of labor federation AFL-CIO, said unions want the board to shorten the time leading up to elections, and want tougher remedies enacted for employers who violate labor laws, by reinstating fired workers more quickly and ordering companies to recognize unions and bargain with them in some cases.

"Election delays and remedies are problems," said Ms. Bunn. "There were a number of decisions that were inappropriately decided by the Bush labor board. We are hopeful they will address these issues."

The NLRB does have some wiggle room to shorten the 42-day average time frame leading up to unionization elections, but Democratic NLRB Chairman Wilma Liebman has said there were constraints on the scope of any changes. Companies say less time would make it harder for them to build a case for opposing a union, because union campaigns often begin months earlier without an employer's knowledge.

Issues surrounding union elections are at the root of concerns critics have about Mr. Becker. In various papers published earlier in his career, Mr. Becker argued that employers should have limited powers to interfere in union elections—which his critics have said show he can't be impartial in adjudicating union-management disputes.

"Those with business before the board have a right to face a fair and impartial panel, but it is highly doubtful that Becker will administer our nation's labor laws in an unbiased manner," said the Associated Builders and Contractors' National Chairman Jim Elmer, who is also president of James W. Elmer Construction Co., in Spokane, Wash.

Mr. Becker declined to comment. In testimony before Congress, Mr. Becker said he would respect current law, which gives employers rights to communicate with workers in union elections, and drew a distinction between scholarly writing and his duties as an NLRB member. Mr. Becker's confirmation had been blocked in the Senate by a Republican-led filibuster in February. The recess appointment means he can serve through next year.

Ms. Liebman said the NLRB could seek to go beyond adjudicating cases, and for the first time in more than 20 years, consider new rules to govern employer-union interactions. Rule making is "something a new board should consider," Ms. Liebman said.

Labor experts said the NLRB could look at rules to allow the formation of so-called minority unions, which would allow unions to seek an election for a pro-union subset of employees at a workplace. That would give unions a greater chance of winning a foothold in a company. A coalition of unions asked the board to make this change in 2007.

Some Democratic and Republican labor experts say that new rules from the NLRB would give both unions and employers more certainty about interpretations of labor law, which otherwise tends to shift depending on which political party is in the White House.

But new rules would also be tough to undo by future boards, something labor unions consider a positive with the current board in place and business groups cite as a concern.

Peter Schaumber, the lone Republican on the board, says he supports rule making to address procedural matters but not controversial issues like the formation of minority unions. In general, Mr. Schaumber says he is concerned his Democratic colleagues will overreach in their approach to interpreting labor law.

The risk "is that you will impose your own personal policy and imperative and not the imperatives of Congress," he said.

Ms. Liebman said the NLRB should weigh economic and work-place conditions "and not just engage in a sterile debate over the meaning of words."

Write to Melanie Trottman at melanie.trottman@wsj.com and Kris Maher at kris.maher@wsj.com

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