Two Member NLRB Strategy

With Chairman Liebman leaving the NLRB, and Member Becker's recess appointment running out at the end of the year, some anti-union advocates are now urging Republican Member Bryan Hayes to resign. Why? In order to incapacitate the NLRB by reducing it to two members. In New Process Steel last year the Supreme Court held a two member Board lacks a quorum and cannot lawfully function. To me this is not a strategy, rather it would cynically exploit the ability to create temporary dysfunction, for questionable short term political objectives. But of course the real problem is many on the right don't like the National Labor Relations Act, believe it is unconstitutional (despite a Supreme Court case to the contrary) and want it gone. Although I teach labor law, my practice is one that represent's management interests and has been for 35+ years. Those who call for repeal of the NLRA think they would remove a regulatory barrier. In truth, many on labor's side might join in repeal because repeal would unleash economic weapons favoring labor that could reinvigorate certain strikes and secondary boycotts now made unlawful by the NLRA. Be careful about what you ask for.

Becker to get recess

President Obama will use recess appointments to by-pass Senate confirmation for 15 high level appointments including Craig Becker's appointment to the NLRB, as well as that of another Democrat, Mark Gaston Pearce.  The NLRB's press release is here. 

When is a banner a picket?

The effectiveness of union tactics depends on many factors. Take for example the bannering and leafletting of businesses to protest some union objective. Thats what the Carpenter's union is doing in this California town. The National Labor Relations Act, since Taft-Hartley, prohibits secondary picketing. Thats where a union targets a customer of the employer with whom the union has a labor dispute. Its illegal to picket a "secondary," and the NLRB can enjoin the activity and a union can be sued for damages.

Laurel Baye cert. petition filed by NLRB

Labor professors and labor practitioners have followed the issue of whether the 5 member NLRB can issue valid decisions when three of its five seats are vacant. There is a split in circuits on the question. Yesterday the NLRB filed a petition for certiorari in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB. Press release here.