Charles H. Goldstein Labor Law Symposium

On February 17, The George Washington University Law School will host the Charles H. Goldstein Labor Law Symposium. The Symposium will address the following topics:

Is the NLRA an Outmoded Statute in the 21st Century?
Chair, Professor Charles Craver, GW Law School
Professor Cynthia Estlund, Columbia Law School
Jonathan Hiatt, General Counsel of the AFL-CIO
Robert Battista, NLRB Chairman

What Must Labor Unions Do to Survive in the 21st Century Economy?
Chair, Professor Fred Freilicher, GW Law School
Wilma Liebman, NLRB Member
Marshall Babson, Hughes, Hubbard & Reed
Judy Scott, General Counsel of SEIU
Professor Keith Hylton, Boston University School of Law

Moving to a Post-Industrial, Global Economy and the Decline of Labor Unions
Chair, Professor Charles Craver, GW Law School
Professor Marion Crain, UNC Law School
Pat Szymanski, General Counsel of the Teamsters

As an aside, the NLRB recently held that The George Washington University violated Section 8(a)(5) and (1) by refusing to bargain with a newly certified union that represents a unit of part-time faculty members.
See The George Washington University, 346 NLRB No. 13 (2005).

President Bush Recess Appoints Dennis P. Walsh to the NLRB

On Tuesday, January 17, President Bush recess appointed Dennis P. Walsh to be a Member of the NLRB. The White House's announcement is here.

This recess appointment brings the Board to full strength. Robert Battista (R), the chairman, sits in the Murdock seat. His term will expire on 12/16/07. Peter Schaumber (R) sits as a recess appointee in the Madden seat. His appointment will expire at the end of this session of Congress. Peter Kirsanow (R) sits as a recess appointee in the Carmody seat. His appointment will expire at the end of Congress' next session. Wilma Liebman (D) sits in the Smith seat. Her term will expire on 8/27/06. And Dennis Walsh (D) sits as a recess appointee in the Gray seat. His appointment will expire at the end of Congress' next session. Nominations for each of the recess appointees are pending in the Senate.

NLRB Declines to Rule on Legality of Inflatable Rat

The NLRB recently avoided resolving a hot issue when it declined to answer whether a union violated Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property near a secondary employer’s entrance. Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 346 NLRB No. 22, slip op. at 2, n.3 (2006).

In that case, the General Counsel issued a complaint alleging that the respondent union violated the Act on two separate occasions. First, the GC argued that the union violated Section 8(b)(4)(ii)(B) by displaying the inflatable rat. Second, the GC argued that the union violated that same section by staging a mock funeral procession during which union members patrolled the public sidewalk in front of the secondary employer while carrying a faux casket. An ALJ found that each action separately violated Section 8(b)(4)(ii)(B). The Board unanimously adopted the judge’s finding that union violated the Act by engaging in the mock funeral procession. Reasoning that a finding of an additional violation would be cumulative and would not affect its Order, the Board declined to address the legality of the inflatable rat.

The press has given a good deal of attention to the inflatable-rat issue lately. See Joy Davia, Inflatable Rats Seek Cover After Labor Board’s Ruling, Dem. & Chron., Sept. 25, 2005; Alison Grant, Free Speech or Vermin?, Plain Dealer, Oct. 4, 2005; Jessica Marquez, Unions’ Inflatable Rat an Endangered Species, Workforce Management, Sept. 9, 2005; Alan Feuer, Labor’s Huge Rubber Rat, Caught in a Legal Maze, N.Y. Times, Dec. 28, 2005, at B1 (subscription required). To see streaming video of MSNBC coverage, click this link, insert “rat becomes union protest symbol” into the "MSN Video search" box, and click on the result. The issue has also received some academic commentary. See Timothy F. Ryan and Kathryn F. Davis, Banners, Rats, & Other Inflatable Toys, 20 Lab. Law. 137 (2004).

Displaying a large inflatable rat is similar in many respects to erecting a large banner. The Board has been unsuccessful in its attempts to persuade federal courts in Section 10(l) proceedings that reasonable cause exists to believe that unions have violated the Act by erecting large banners near secondary employers. Overstreet v. Carpenters Local 1506, 409 F.3d 1199 (9th Cir. 2005); Gold v. Mid-Atl. Reg’l Council of Carpenters, 2005 WL 3597692 (D. Md. Dec. 22, 2005). It remains to be seen how the newly constituted Board will handle these issues.

President Bush Makes Recess Appointments to the NLRB

On January 4, President Bush recess appointed Ronald E. Meisburg as the General Counsel and Peter N. Kirsanow as a Member of the NLRB. The President had nominated Meisburg and Kirsanow for these positions in July and November 2005, respectively. Both of those nominations have been referred to the Senate Committee on Health, Education, Labor, and Pensions, as was the President's April 2005 nomination of Dennis P. Walsh to serve as a Member of the Board. The President declined to recess appoint Walsh.

The recess appointment of Kirsanow is significant. With three Republican Members now on the Board (for the first time since December 2004), the Bush Board now has the potential to overrule Clinton-Board precedent. The Board has had a three-Member Republican majority during only approximately two years of President Bush's five years in office.

The recess appointments follow quickly on the heels of an article in the Wall Street Journal authored by the president of the National Right to Work Legal Defense Foundation, Mark Mix. In the December 31 article, Mix urged the White House "to get off the dime and install an NLRB majority" to address the Dana/Metaldyne cases, among others, free from the constraint of institutional adherence to precedent.

Will the appointments satisfy Ross Runkel ?