Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

On Tuesday, February 4th, the United States Senate Health, Education, Labor, and Pensions (“HELP”) Committee called a rare hearing to question Craig Becker, President Barack Obama’s nominee for the National Labor Relations Board (“NLRB”). While Becker was approved by the HELP Committee last year in a 15-8 vote, Arizona Senator John McCain (R.) placed a hold on his nomination, keeping a Senate vote from taking place. Therefore, the White House resubmitted his nomination and the Committee voted on Becker again yesterday, before a confirmation vote in the full Senate.

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Late last week the Bureau of Labor Statistics released its numbers concerning the levels of union membership in 2009. As in past years, the number of union members in the private sector has declined, now down to 7.2% from 7.6% in 2008. In December 2009, the NLRB's General Counsel released the Agency's numbers regarding the number of initial union representation elections in FY 2009. Once again, the number of elections initiated by unions has declined, this time by a whopping 19% in just one year.

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On December 24, Craig Becker’s nomination to the NLRB ran into a significant obstacle when the Senate returned the nomination to the White House for reconsideration.

Becker, who works for the Service Employees International Union, was nominated by the President earlier this year to fill one of the two vacant Democratic seats on the NLRB.  There has been significant controversy surrounding his nomination due to what critics describe as his extreme, some say radical, pro-union views concerning possible changes to the nation’s labor laws.  The nominations of Democrat Mark Pierce and Republican Robert Hayes were both held over by the Senate for consideration during the next term, indicating that both are likely to be confirmed.  

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Fairly or not, America’s commercial banks have been vilified by many as the cause of the nation’s financial meltdown. The CEOs of America’s most venerable financial institutions have been called to Washington and excoriated by an angry Congress, and on talk shows across the nation their salaries have been contrasted with those of hourly-paid financial workers. The new administration has called for tighter regulation of the financial sector and even appointed a “pay czar” to review the compensation structures of banks that have received bailout funds. While most of the attention over the banking crisis is focused on whether, and to what extent, the industry is in need of reform, far less attention has been placed on the veritable “perfect storm” the current political and economic climate has created for unions eager to make inroads into an industry that has been largely untouched by big labor.

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According to data from BNA PLUS, unions have won more than 73% of the elections in which they participated in the first half of 2009. This is up from 66% for the same time period in 2008. The Teamsters led the way by participating in 164 elections and winning 70% of them, while the SEIU was second, winning 75% of 44 elections.  Although the number of elections conducted by the NLRB thus far in 2009 is down from the number in 2008, the union's win rate in each year of this decade has been over 50% and getting better as the decade progresses. The numbers out today indicate that currently unions are overwhelmingly successful when employees are allowed to vote on the question of union representation. Opponents of the Employee Free Choice Act will question why Congress needs to eliminate the secret ballot for employees in order to help unions succeed when unions are obviously faring very well under the current system.

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In one of the largest back pay awards in the agency's history, the National Labor Relations Board (NLRB) concluded a settlement with five Michigan beer distributors that required the companies to pay $41 million in back pay to employees and the Teamsters. Findings from an ALJ, supported by the NLRB and the 6th Circuit Court of Appeals, concluded that the five companies colluded to systematically oust the union by separately engaging in bad faith bargaining, unlawfully declaring impasse, and then implementing their respective labor contracts with substantially lower wages and benefits.

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