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New Labor Board May Enact Union Card Check provisions

March 30, 2010

Fasten Your Seatbelts: President Obama Makes Recess Appointments to National Labor Relations Board
By Wayne D. Landsverk, Frank Van Dusen
Miller Nash LLP,
Oregon and Washington Law Firm

On Saturday, March 27, President Obama announced recess appointments for two Democratic nominees to the National Labor Relations Board (“NLRB”), including a controversial union lawyer whose published views on labor law and policy have alarmed many observers. The recess appointments are valid until the end of 2011 or the Senate confirms an individual to the seat in question, whichever comes first. The news was cheered by unions and caused the U.S. Chamber of Commerce to put business on “red alert.”

The recess appointments to the NLRB are Democrats Craig Becker and Mark Pearce. The President did not give a recess appointment to the pending Republican nominee Brian Hayes. The result is that the Obama board now has four members—three Democrats, including current chair Wilma Liebman and one Republican, Peter Schaumber, whose term expires in August 2010. Starting today, and for the foreseeable future, this new NLRB majority can be expected to move forward with a pro?union agenda.

Mr. Pearce is widely regarded as being “between the 40?yard lines” in his views. Mr. Becker, on the other hand, has expressed opinions that fall well outside the mainstream, including his view that employers should have no role in union representation elections.

What can employers expect from this new Board? The answer is plenty, and soon. With the ironically named Employee Free Choice Act on hold in Congress, the new Board will likely propose rule changes to accomplish many of the same ends, such as severely shortening the time frame from filing of a representation petition to the date of election. The new Board can also be expected to reverse, at the earliest opportunity, a host of decisions issued by the Bush Board. On many of those decisions, now?chair Liebman wrote dissenting opinions, and it can be assumed that the views expressed in those dissents will become majority decisions as similar cases are decided by the Board. Such opportunities will not be long in coming, as hundreds of cases are awaiting decision before the Board.

The new Board’s union agenda will impact union and non?union employers alike. Employers can expect increased organizing activity, accompanied by more challenges to employer rules and actions. Now would be a good time to re?examine company handbooks, rules, and policies to make sure that your organization is well positioned to withstand the coming challenges, and to train your supervisors to be prepared for what most likely lies ahead.

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