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A Big Week for Big Labor


February 1, 2011

By Amy Moor Gaylord and Chris Johlie

Last week saw a number of new developments for organized labor.  On Wednesday, January 26, 2011,  President Obama re-nominated former SEIU General Counsel Craig Becker to the National Labor Relations Board (NLRB).  Obama previously nominated Becker to the NLRB in July 2009 but the nomination was blocked by the Senate in February 2010.  The vote took place amid strong opposition to Becker's nomination by management and employer groups, which raised concerns that Becker would circumvent Congress by implementing portions of the proposed Employee Free Choice Act through NLRB decisions, and citing his radical views about union organizing campaigns and representation elections.

Since March 2010, Becker has served on the NLRB in a recess appointment which expires at the end of 2011 unless further action is taken.  Since his recess appointment, additional concerns have been raised in response to Becker's refusal to recuse himself in cases involving local unions affiliated with the SEIU or AFL-CIO.  Indeed, Becker has recused himself in only one case involving his former employer, a case in which he acted as counsel of record prior to his recess appointment.  In connection with the NLRB's decision in Pomona Valley Hospital Medical Center, 355 NLRB No. 40 (June 8, 2010), Becker denied a series of pending motions for recusal and expressed his view that he is only obligated to recuse himself in cases in which the SEIU international itself is a party, and not any of its locals.  The distinction is questionable at best, given the international union's strong control over its locals.
Becker's nomination comes on the heels of Acting General Counsel Lafe Solomon's December 2010 memorandum directing the NLRB's Regional Offices to seek a variety of remedies in unfair labor practice cases involving union organizing campaigns.  These remedies are designed to marginalize the employer's involvement in the union representation process, one of Becker's stated goals.  The NLRB has not had a Democratic majority since 2001, and it seems poised to take whatever steps it can, while it can, to handcuff employers during the union organizing process. 
The business community has pledged to fight the nomination.  In response to the news, Glenn Spencer, an executive director for the Chamber of Commerce, stated, "We've now had a year to see what he [Becker] actually will do, and I think that kind of confirms some of our issues with this nominee."  Katie Gage, executive director of the Workforce Fairness Institute, commented, "In renominating Becker, President Obama has sent the message to employers across the country that his rhetoric is just that and the nation's chief executive is more concerned with paying back union bosses than turning the economy around.  We will work with small-business owners to ensure the Senate once again rejects the Becker nomination."

On Thursday, January 27, 2011,  U.S. Senator Jim DeMint (R-South Carolina) introduced the Secret Ballot Protection Act (SBPA),  which would guarantee workers the right to vote in a secret ballot election on whether to unionize.  The Bill has 17 co-sponsors including Senators Lamar Alexander (R-Tennessee), John Barrasso (R-Wyoming), Richard Burr (R-North Carolina), Saxby Chambliss (R-Georgia), Thad Cochran (R-Mississippi), Mike Enzi (R-Wyoming), Lindsey Graham (R-South Carolina), James Inhofe (R-Oklahoma), Jon Kyl (R-Arizona), John McCain (R-Arizona), Jerry Moran (R-Oklahoma), Rand Paul (R-Kentucky), James Risch (R-Idaho), Richard Shelby (R-Alabama), John Thune (R-South Dakota), David Vitter (R-Louisiana) and Roger Wicker (R-Mississippi). 
The Bill would amend the National Labor Relations Act (NLRA) to make it an unfair labor practice for an employer to recognize, or bargain with, a union that has not been selected by a majority of employees in a secret ballot election conducted by the NLRB. It also would make it an unfair labor practice for a union to cause or attempt to cause an employer to recognize or bargain with a union that has not been selected in a secret ballot NLRB election.  

The Bill has been introduced several times in the past, most recently in February 2009, but has not garnered the needed support.  It is not insignificant that its re-introduction comes shortly after the NLRB's threats to sue Arizona, South Carolina, South Dakota and Utah over constitutional amendments guaranteeing workers the right to a secret ballot in union elections, similar to the SBPA.   NLRB General Counsel Lafe Solomon has stated that the amendments conflict with federal law, which gives employers the option of recognizing a union if a majority of workers sign cards that support unionization. 

The Attorneys General of Arizona, South Carolina, South Dakota and Utah have responded to Solomon stating: "We reject your demand to 'stipulate to the unconstitutionality' of these amendments. These state laws protect long existing federal rights, and we will vigorously defend any legal attack upon them. That the NLRB would use its resources to sue our States for constitutionally guaranteeing the right to vote by a secret ballot is extraordinary, and we urge you to reconsider your decision.  The voters of our States overwhelmingly support the laws that you threaten to challenge. Indeed, 86% of South Carolina's voters approved the amendment supporting secret ballots. Likewise, the voters in Utah, South Dakota and Arizona approved constitutional amendments protecting secret ballots by votes of 60%, 79% and 61% respectively."

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