Over the weekend, President Obama exercised his right to make recess appointments to various positions, including two posts to the National Labor Relations Board. As you may have heard, the Board has been operating (if you can call it that) for two years with just two out of the five members.
There have been a lot of pixels used this week trying to explain why these recess appointments are horrible for business and result in the end of the world as we know it. Frankly, it’s a bit overkill.
That’s not to say that employers shouldn’t expect the NLRB to issue more decisions that are "pro-union" or "employee-friendly" (as those loaded terms are used) and reverse some cases or rules that were issued under the Bush Administration. Employers SHOULD expect those decisions to come now.
But those types of reversals happen virtually every time a new administration changes from one party to another. It was completely unrealistic to have thought otherwise. (Mark Toth summarizes some of the areas that we might see a reversal on.)
Yet, to look at the headlines like the one from Point of Law "Get Ready for Radical Interpretations of Labor Law" and you might think that this is really unusual. (For a wrapup of other posts, the Ohio Employer’s Law Blog has done a summary here.)
Everyone expected this administration to be pro-labor and to have a pro-labor NLRB. It seems to me, therefore, that all the hand-wringing over Becker is a bit overdone. I represent employers. I believe employer-employee relations are handled better without a union. I also believe, however, that when an employer ends up with a union, it’s deserved 99% of the time. An employer will have much more to do with whether a labor union gets its foot in the door by the way employees are treated than by anything Craig Becker does.
Indeed, in some ways the appointments will be "good" for business in the sense that it will bring back some certainty in areas of labor law. For the last several years, employers have been in limbo not knowing if, for example, the Employee Free Choice Act might come to pass. With new rules and decisions from the NLRB, employers might get a path towards compliance and knowing what the limits of the rules are.
Employers relish stability. If you don’t think so, ask a HR representative how much fun they’ve been having with the COBRA subsidy rules.
Yes, employers will need to do a bit more planning and continue to educate supervisors and managers about various elements of labor law but that was expected with the Obama Administration. At least now, employers can stop living in the theoretical and start working with the actual.
The appointments are here for the foreseeable future. The time for hyperbole is over; the time for action steps by employers has just begun.