There has been quite a lot of tumult associated with the National Labor Relations Board (NLRB) under President Obama, and the past few weeks have been no different. Just this past week, before heading out for the August recess, the U.S. Senate voted to confirm five members to the Board, including four news ones.
Chairman Mark Pearce was confirmed, as were Democratic nominees Kent Hirozawa and Nancy Schiffer. According to The Associated Press “both have long experience as labor lawyers,” with Schiffer last serving as associate general counsel to the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO). The Senate also confirmed the two Republicans nominees, Philip A. Miscimarra and Harry I. Johnson III.
Now, the Board moves forward. It has a variety of significant issues pending before it; some have lingered for quite some time. In addition, if the U.S. Supreme Court affirms the D.C. Circuit Court’s decision in Noel Canning and declares that President Obama’s recess appointments to the Board were unlawful, the new Board will have its work cut out for it. Such a decision would invalidate as many as one thousand decisions and orders requiring the new Board to consider each one anew.
But for most in the business community, the new Board looks like the previous Obama Labor Boards. Chairman Pearce, who has been on the Board since 2010, has supported sweeping changes in Board law and procedure for the sole purpose of making union organizing easier. Nancy Schiffer is the third appointment to the Board made by President Obama of a person who comes directly to the Board from working for Big Labor. Prior to this administration, a lawyer working for a union would first have to serve a period of time in a neutral capacity before they could sit on the Board. It will be difficult for Schiffer to be impartial and we do not anticipate she will be. During her career at the AFL-CIO she zealously argued in favor of card check and against continuation of the secret ballot. Her testimony on the issue turns a blind eye to the pressure employees would be under if they were required to cast a vote for or against the union on a card in public.
Lafe Solomon appears to have been unceremoniously shoved aside and in his place Richard Griffin has been nominated as general counsel. Griffin is one of the two recess appointees to the Board who continued to issue decisions after the D.C. Circuit held they were without authority to do so. Some of the decisions they issued further developed the law under controversial Obama Board precedent. This decision-making continued even after two other circuit courts joined the D.C. Circuit in holding they were non-members.
The Board and general counsel, as the agency’s prosecutor, are required by law to work independently of each other, but that gives us little comfort. Griffin’s nomination is troubling because, like Schiffer, he comes directly from a union, the International Union of Operating Engineers (IUOE). He and Schiffer know what changes Big Labor wants and they each will be in a position to deliver. Griffin can bring issues to the Board for decision that are not now pending and give the new Board the opportunity to make further changes in Board law to unfairly favor union bosses.
Apart from his obvious partiality, Griffin’s suitability for the position is open to question for another reason. His former employer, the IUOE, has been described in the press as overrun by organized crime and not long ago Griffin was named a defendant in an embezzlement and racketeering lawsuit arising out of the period of time he served as IUOE’s general counsel.
As the backgrounds and records of the union-side Board members raise concerns, so does the current roster of matters before the Board. For instance, Roundy’s Inc. is on the business community’s radar screen. The case is likely to reverse prior Bush Board precedent and require employers to give union organizers access to their property if the business owner grants access to other groups, organizations or individuals. For example, if a business generally allows charitable organizations to solicit on its premises, such as the Girl Scouts to sell cookies, the business will be required to grant the same access to labor organizers to solicit support for the union.
It is also likely that the new Board will reverse existing Board law which has long recognized an employer’s right to control the use of its equipment and give employees access to their employer’s e-mail and intranet systems for union organizing and similar activities. Consider the impact on production and workplace harmony if employees are permitted to solicit for the union or complain about their supervisor and the employer by e-mail while working. The Roundy’s case could be the vehicle the Board will use for this dramatic change in Board law.
The Board is sure to revisit its “quickie” or “ambush” election rule. The Board issued a final rule, but a federal court set it aside finding the Board did not have a lawful quorum to issue it. The new Board can correct this error and promulgate a new rule similar to the one it originally proposed. Such as new rule will shorten the time between a petition and election to between 10 and 14 days and unfairly disadvantage employers. Such a new rule will likely provide labor bosses with the personal contact information of employees, including their cell phone numbers and e-mail addresses. This information, which most employees anticipated would be kept confidential by their employer, can be used by union organizers to harass and intimidate workers so they vote in favor of the union.
Based on Schiffer’s prior Congressional testimony is it likely the Board will make additional changes in how elections are conducted to make the secret ballot more like her favored card check. The election, for example, could be moved away from the employer’s premises where it has been held for the last 75 years to assure as little interruption in production as possible and maximum turn-out. The Board could also allow the use of smartphones or other devices for casting a ballot, which like card check, will expose a worker’s vote to the scrutiny of third parties, labor bosses and their organizers.
In the coming months, the business community will be closely following the Board and the actions it takes and the decisions it issues. We enter this new period without any illusions and plan to hold the new Obama Labor Board to account, much like we did the previous ones.