Will the NLRB Push Big Labor’s Agenda?

Organized labor expended enormous amounts of resources and effort to give Democrats control of Congress in 2006 and the White House in 2008. For this considerable investment, union leaders hoped to get a rich return in enactment of the so-called Employee Free Choice Act (EFCA) — which, in its current form, would:

  1. Effectively eliminate secret ballots in union organizing elections;
  2. Enjoin federally appointed arbitrators to impose contracts on newly unionized companies that could not reach agreement with the union after 120 days; and
  3. Increase employer penalties for unfair labor practices, which include actions resisting unionization that would be legal in other contexts, such as promising to raise wages.

Now, with the Republican takeover of the House of Representatives and the Democrats’ Senate majority considerably narrowed, the clock is running out fast on Big Labor’s legislative agenda. As a result, Democrats in Congress will probably try to enact as many items on their union allies’ agenda as possible during the lame duck session. As I noted yesterday, we could see:

  1. A version of EFCA without its politically toxic card-check provision;
  2. A version of EFCA with card-check replaced with a different organizing mechanism favorable to unions, such as expedited elections or electronic voting;  or
  3. EFCA’s three sections being split off and attached to other legislation.

Moreover, as hopes for organized labor’s agenda fades in Congress, unions and the Obama administration are likely to shift the fight toward the National Labor Relations Board (NLRB). With Craig Becker and Mark Gaston Pearce, both recess-appointed by President Obama, sitting on the Board, the unions have a good chance of getting administratively what they couldn’t get legislatively.

Becker, a former associate counsel with the Service Employees International Union (SEIU),  failed to get Senate confirmation, largely due to previous writings in which he stated that employers should have no say in the organizing process.

Pearce hasn’t been as controversial, but he recently gave indication of being as dismissive of employers’ free speech rights — and of what the Board might try to accomplish. On October 21, at a labor law conference in Boston, Pearce said that he believed that the time period between the filing of an organizing election petition and the actual election should be “as brief as possible.” Shorten that period enough, and you end up with “ambush” election, in which employers barely get an opportunity to respond to a union organizing campaign.

Pearce’s comment suggests the possibility of the NLRB doing an end run around Congress. EFCA opponents in Congress should take the threat seriously, and counteract it if needed.

For more on labor, see here and here.