Deadlock Is Ending on Labor Board
By Steven Greenhouse
NY Times Business: March 31, 2010
Because of President Obama's recess appointments of two union lawyers to the
National Labor Relations Board, business groups are warning that the panel
will kick quickly into a pro-union gear after 26 months of near paralysis,
when just two of its five seats were filled.
Business groups fear that the appointment of Craig Becker, a lawyer for the
A.F.L.-C.I.O. and the Service Employees International Union, will push the
board to favor unions on dozens of issues - like whether companies should be
required to allow union organizers on their property during organizing
"Becker will bring a very strong, pro-union, anti-employer animus to
decision-making at the board," said Randel K. Johnson, an executive of the
United States Chamber of Commerce. "Our view is he will resolve things
almost invariably in favor of unions."
Business organizations also worry that the board will revamp the rules for
unionization elections by engaging more than ever before in broad
rule-making while relying less on case-by-case decision-making.
Labor unions argue that the recess appointments of Mr. Becker and Mark
Pearce, a Buffalo-based lawyer, will merely restore some balance after the
board favored business under President George W. Bush.
"The Bush board took things in a really anti-worker direction," said
Jonathan Hiatt, chief of staff of the A.F.L.-C.I.O.. "Workers have taken a
beating under board rulings in recent years, and we hope the new board will
provide a little more fairness to workers who want to exercise the right to
organize and bargain collectively."
Mr. Becker and Mr. Pearce declined to be interviewed about their views on
After being nominated, Mr. Becker, a former law school professor, came under
fire for writing in a 1993 law review article that employers should not have
a legal right to campaign in union elections. When Republicans said that his
view conflicted with current law, Mr. Becker said that he was merely
engaging in a scholarly debate and that as a labor board member, he would
follow the law in deciding cases.
The labor board, created by the National Labor Relations Act of 1935,
oversees enforcement of the laws governing union drives, strikes and
negotiating labor contracts in the private sector.
Among the areas where unions hope the Obama board will take a new tack is
the Bush-era ruling that graduate teaching assistants are not employees and
therefore do not have a right to unionize. Labor leaders also hope the Obama
board will reverse a ruling that many senior nurses are supervisors, rather
than rank and file, and thus cannot join a union. That decision has
hamstrung many unionization drives at hospitals by leading to litigation
about which nurses can unionize.
One thing labor and business agree on is that the board's deadlock will soon
end. Since January 2008, the board has had just one Democratic member, its
chairwoman, Wilma B. Liebman, and one Republican, Peter C. Schaumber. Now
there will be three Democrats and one Republican.
About 220 cases are pending at the board, half on important, controversial
issues that Ms. Liebman and Mr. Schaumber have not tackled, believing they
should not be handled by just two members. And in about 60 cases, the two
members have deadlocked.
"There's now a full complement of Democrats on the board so they can start
doing something," said Samuel Estreicher, a labor law professor at New York
University. "I think you're going to see a more activist N.L.R.B."
Accusing the Republicans of obstructionism in blocking or delaying his
nominees, Mr. Obama appointed Mr. Becker and Mr. Pearce last Saturday after
Congress left for a recess. Many Republicans criticized the move, which came
after Democrats failed to muster 60 votes to overcome a threatened
filibuster in the Senate. But Democrats said that 7 of Mr. Bush's 10
appointments to the N.L.R.B. had been recess appointments, one of them the
Chamber of Commerce's director of labor law policy.
For the last decade, many unions have avoided the labor board and its
elections when seeking to unionize workers. The number of board-supervised
elections fell to 1,343 last year, from 3,162 a decade earlier. Unions have
instead often pursued card check, seeking to persuade a majority of a
workplace's employees to sign cards saying they want a union and then
mounting a campaign to press management to grant union recognition.
Many academic experts predict that the Democratic-dominated board will
revamp rules so that unions do not feel the system is tilted against them.
This could lead them to turn more to board-supervised union elections.
Unions often complain that it can take two months to hold an election,
letting pro-union sentiment dissipate while management campaigns against the
union, often in meetings that workers are required to attend - all while
companies can bar union organizers from setting foot on their property.
Unions also complain that many companies illegally fire union supporters
during organizing drives and that it often takes the board three or four
years to reinstate them.
Harold P. Coxson Jr., a management lawyer and former Chamber of Commerce
official, voiced concern that with Congress unlikely to enact legislation
that makes it easier to unionize, the labor board "will make the difference
in the debate." Among the ideas that have stalled in Congress since the
Democrats lost their 60-vote supermajority in the Senate is requiring snap
unionization elections - within 7 to 10 days of pro-union workers
petitioning for an election.
In an interview, Ms. Liebman declined to discuss the areas where the board
might use rule-making.
"Rule-making is something that certainly academics have been talking about
for some time," she said. "I think it's worth consideration. It's often
served up as the antidote to all the flip-flopping" between rulings by
Democratic boards and Republican ones.
Ten Things You Didn't Know Were in the Health Bill
by: Emily Badger
Miller-McCune: March 29, 2010
From breast pumping to adoption tax credits, the leviathan known as the U.S.
health care bill is loaded with little goodies.
The 2,000-page health care bill that became law last week is packed with
major reforms probably well known (in concept if not in detail) by anyone
who has channel-surfed through the nightly news over the past year. There's
an individual mandate, a system of exchanges, new government subsidies and a
ban on some of the worst practices of the insurance industry.
Let's say the small print on the big stuff accounts for about 1,500 pages,
give or take a ream. What's in the rest? Some random, weird and interesting
solutions to problems you may or may not have known you had, some with
dubious connection to health care at best. As a public service, we explain
some of them here.
The Idea Lobby lists these provisions without endorsement or critique
(although cobbling them all together on a single page does make the
aggregate look a little scatterbrained). But, rest assured, someone in the
know championed hard for each one: the Center for Science in the Public
Interest, National Indian Health Board, the National Consumer Voice for
Quality Long-Term C
1. Menu labeling. The legislation mandates that national chains with at
least 20 restaurants must post "nutrient content disclosure statements" - in
other words, calorie counts right next to the menu offering "Big Mac." To
drive the point home, menus will also have to mention your suggested daily
caloric intake. The provision has all kinds of addendums to deal with
seasonal specials, salad bars, vending machines and condiments, but the main
idea is this: Maybe we'll eat less garbage if we can't remain willfully
ignorant about how bad it is for us.
2. Swag disclosure. The bill contains key elements of the Physician Payments
Sunshine Act, a previously bipartisan idea calling for pharmaceutical reps
and device manufacturers to disclose all the goodies they give doctors. This
includes money, gifts, food, travel, entertainment, grants, just about
anything that may constitute a conflict of interest. The "transparency
reports" must be submitted to the Secretary of Health and Human Services and
will be posted on a publicly searchable Web site.
3. Right to pump. Workplaces will have to provide "reasonable" break time
and a private location - other than a bathroom - for breastfeeding mothers
to pump breast milk for one year after the birth of a child. Women's groups
have long sought such guarantees, and this one will apply to all workplaces
with the exception of employers with less than 50 employees, where the
demand might create an "undue hardship."
4. Postpartum depression. In addressing another priority for women's groups,
the bill singles out the problem of postpartum depression for expanded
funding, worker training, publiceducation and research. The National
Institute of Mental Health is due to conduct a national longitudinal study
of women with postpartum depression, and the Secretary of Health and Human
Services must produce a study on the benefits of PPD screening.
5. Tanning tax. Starting July 1 of this year, there will be a new 10 percent
excise tax on indoor tanning services (in legislative speak, "a service
employing any electronic product designed to incorporate [one] or more
ultraviolet lamps and intended for the irradiation of an individual by
ultraviolet radiation, with wavelengths in air between 200 and 400
nanometers, to induce skin tanning"). Something called "phototherapy" is
6. Adoption credit. Beginning with your 2010 taxes, the federal adoption
credit goes up by $1,000 to $13,170 per child and now becomes refundable. As
one happy advocate blogged, "I'm pretty creative in coming up with ways that
adoption is good for all concerned, but even I think the connection of the
adoption tax credit and health care is tenuous."
7. Indian health. The bill incorporates aspects of the Indian Health Care
Improvement Act, a goal of organizations who point out American Indians have
the worst health disparities of any minority group in the U.S., particularly
dealing with suicide, alcoholism and tuberculosis. The law increases funding
and support on tribal lands for behavioral health and substance abuse,
health care worker recruitment and facilities construction.
8. Background checks. The Secretary of Health and Human Services is tasked
with developing a national system for conducting criminal background checks
of prospective health care workers who would deal directly with patients in
long-term care facilities or private homes. This is one of a suite of
changes aimed at protecting seniors in nursing homes.
9. Abstinence education. The bill restores federal funding for
abstinence-only education, the sex-ed technique that urges students to wait
until marriage (while eschewing talk of contraceptives). Researchers dispute
the effectiveness of the strategy, and it was getting the cold shoulder from
the Obama administration. The health reform bill, however, allocates $250
million for such programs over the next five years.
10. Your W-2. Changes are coming to your tax paperwork. Come next January,
the W-2 you receive from your employer (if, hopefully, you have one) will
include the cost of employer-provided health care you probably have not
quantified before. This will become much more relevant in 2018, when people
with the so-called high-cost "Cadillac" plans will have to start paying a
hefty tax on it.