EFCA Report : EFCA Lawyer & Attorney : Employee Free Choice Act

Online today, NPR carries a piece from the New Republic's John B. Judis entitled "Obama's Hinge Moment."  It is a partisan piece, but generally accurate in the facts the author includes.  His argument: President Obama should recess appoint Craig Becker to the National Labor Relations Board to embolden labor unions.  In describing the prolonged history of Mr. Becker's stalled nomination, Mr. Judis reports:

In his responses [to HELP Committee questions], Becker dealt satisfactorily with the principal charge against him — that he would use the NLRB to administratively enact the Employee Free Choice Act. (The measure, which labor has been unable to get through Congress, would make it easier for unions to organize workplaces.) Becker said explicitly that he would not.

Yet, Mr. Judis notes that only 52 Senators voted to invoke cloture, failing to end a filibuster on confirmation of Mr. Becker's nomination; and, during the February Congressional Recess, President Obama declined to make recess appointments.  His suggestion: 

The administration has another chance to act during the Easter recess from March 29 to April 11. Jon Hiatt, chief of staff to AFL-CIO President Richard Trumka, says his union has a "strong belief" that Obama will act then. But other labor officials, who didn't want to speak for attribution, are far less certain of the outcome. Obama's failure to make the recess appointment in February has only added to their unhappiness with the administration, which began when Obama endorsed an excise tax on the generous health insurance plans that unions have won for their members — after he had pledged during the campaign to oppose such a tax and attacked McCain for favoring one. Trumka has told several people the story of how, when he went to the White House to discuss the health care bill, the president told him that, if he was not willing to accept the excise tax, there could be no discussion. Says one person who has worked closely with the AFL-CIO and its unions, "People are starting to think it is not just Rahm Emanuel."

At the end of this month, Obama will have a chance to prove these critics wrong. It would certainly be the politically smart thing to do. Labor remains essential to the Democratic coalition, and, given that Obama cannot offer unions what they really want — the Employee Free Choice Act — he can at least mollify them with this. More than a shrewd political move, however, filling the vacancies on the NLRB is the right thing to do. It is a small agency but an important one. And, as long as it remains crippled, one of the core philosophical commitments of the Democratic Party — the idea that workers ought to have some counterweight to the overwhelming power of big business — goes unfulfilled.

As indicated in the piece, the next Congressional Recess begins March 29, 2010.

(Hat tip:  ShopFloor.org)

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The Wall Street Journal’s Kris Maher and other sources report that Vice President Joe Biden told attendees of the AFL-CIO annual winter meeting that there is still hope for the Employee Free Choice Act and a union-friendly National Labor Relations Board.

“I know it doesn’t seem like it, but we’ve come a long way in 12 months,” Biden told several hundred union officials. “In terms of the NLRB, we’re going to get it done. In the fight for EFCA, we’ve got to sit down and figure out where we go from here…. I think we’re going to get it done.

Reporting on the same speech, Michelle Amber of the BNA Daily Labor Report (subscription required), writes that the Vice President acknowledged that there was some disappointment among labor leaders. But he described the friction as “tactical differences."

Biden said the administration has not gotten “it done in terms of the NLRB,” adding, “but we are going to get it done.” Biden, however, did not elaborate.

Regarding EFCA, Ms. Amber notes that Vice President Biden told the group that the administration needs “’to figure out a strategy’ on how to get it passed.”

Mr. Biden’s audience was reportedly less enthusiastic than it was a year ago. According to Mr. Maher:

Ahead of this year’s meeting, some union presidents suggested the mood would be more contentious once union leaders had a chance to question the vice president in a closed-door session.

 

“I think they owe some answers this time,” said Thomas Buffenbarger, president of the International Association of Machinists. “There’s always something that crops up and gets in the way of labor’s agenda.”

Despite the friction, labor leaders were apparently still supportive of the administration. From the WSJ:

“The labor movement is a long way from throwing the president under the bus,” said John Gage, president of the American Federation of Government Employees. “I think we had exaggerated hopes for the Obama administration, and people are taking an objective look at where we are.”

 

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MLA attorneys Richard Hankins and Seth Borden co-authored a piece in today's Bloomberg Law Reports entitled "Key Remedial Elements of the Employee Free Choice Act That May Be Implemented Without Legislation."  The piece explores the likelihood of a fully-constituted National Labor Relations Board pursuing an expansion of its recent approaches to injunctive relief, civil penalties, Gissel bargaining orders, and "first contract" remedies.   The conclusion:

...EFCA proponents have argued that the extraordinary remedies discussed in this article are rarely sought by the NLRB. To date, this has largely been true. However, the NLRB has historically suffered from very tight budgetary constraints. Moreover, many would have argued that the politicization of the Board has led the agency to proceed less aggressively during Republican administrations. Those circumstances are now undergoing significant change, with increased funding from the Obama administration, and soon possibly a Board majority more sympathetic to organized labor. This new majority bloc will undoubtedly pursue expansions of all of the remedial options described above – regardless of whether or not EFCA is ultimately passed into law.

You can read the entire piece here.

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As the Senate Recess begins, observers continue to speculate whether President Obama will use recess appointments to place nominee Craig Becker on the National Labor Relations Board.  Last week, Becker's nomination stalled in the Senate when a motion for cloture failed 52-33.  Later in the week, the President strongly suggested that he would not be using recess appointments at this time.  In an opinion piece in today's Politico, University of Texas Professor William E. Forbath asserts that Becker should be confirmed:

Cautious Democrats are urging the White House against making a recess appointment of Craig Becker to the National Labor Relations Board. But these timid Democrats are wrong.

Many argue that the fallout from a Becker appointment would be self-defeating for labor because it would end any chance of getting the Employee Free Choice Act through the Senate. But the EFCA died when Sen. Scott Brown (R-Mass.) took his seat, if it wasn’t dead already. The EFCA won’t pass unless and until the filibuster rules are changed. And then, the Becker appointment won’t matter.

At Human Events, the Heritage Foundation's Brian Darling argues against the use of recess appointments:

A recess appointment can be made to put a nominee into a position temporarily, usually for a year or so, when the Senate is out of session. Many Democrat Leaders in the Senate vigorously opposed President George W. Bush’s use of recess appointments, but now support Obama’s stated intent to use recess appointment authority.

One of the questionable nominees is Craig Becker (for the National Labor Relations Board). Becker was blocked last week by the Senate because many are concerned about his views on the Executive Branch’s power to implement big labor’s agenda without legislation. 

But as noted above, over the weekend, Sam Stein reported in the Huffington Post that the President would not appoint Becker by recess appointment:

Among those on the losing end of the deal struck between Obama and Senate Minority Leader Mitch McConnell (R-Ky.) are labor unions.  Craig Becker, the president's nominee for the National Labor Relations Board who was filibustered by the Senate this past week, will not get the recess appointment next week that union officials were hoping. Instead, his nomination is either dead or put on hold until the next Senate recess at the end of March.

Elsewhere in the Huffington Post, Bill Lucey had a great piece chronicling the historical use of recess appointments by Presidents, "Examining the 'Recess of the Senate'".

More on this issue:

• "White House: No Recess Appointments During Next Week's Break" -- ShopFloor.org
• "Obama’s Love of Labor Makes for One Unholy Union: Kevin Hassett" -- BusinessWeek
• "Recess Posting Possible" -- Wall Street Journal

 

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The morning after the cloture vote failed on the nomination of Craig Becker to the National Labor Relations Board, harsh observations regarding EFCA's prospects from Washington Post columnist Harold Meyerson: "Under Obama, labor should have made more progress".  Calling the Obama administration's first year an "unmitigated disaster" for labor, Meyerson writes:

For the unions, the Senate's inability to pass EFCA is devastating and galling. Democratic senators had developed a compromise proposal that would have jettisoned the controversial "card check" process -- by which unions could be organized without a secret ballot -- in favor of expediting the election process (so that management couldn't delay for months, or even years, employees' votes on whether to unionize) and stiffening the penalties for violating the rules that govern election conduct.

The compromise had a shot at winning all 60 Democratic votes. The unions, which spent more than $300 million in the 2008 elections on Democrats' behalf, wanted a vote on EFCA last year, but Obama and Senate Majority Leader Harry Reid asked them to wait until health reform had passed. (Their requests for confirmation votes on NLRB appointees were similarly delayed.)

By my count, this marks the fourth time in the past half-century that labor's efforts to strengthen workers' ability to organize have been deferred by the Democratic presidents and the heavily Democratic Congresses they supported. In 1965, about the only piece of Great Society legislation not enacted was the repeal of the Taft-Hartley Act provision that gave states the power to block unions from claiming as members all the employees in workplaces where they had won contracts. In 1979, as American management was beginning to invest heavily in union-busting endeavors, the first effort to reform labor law failed to win cloture in the Senate by one vote as President Jimmy Carter stood idly by. In 1994, President Bill Clinton responded to a similar labor-backed effort by appointing a commission to recommend changes in labor law to the next Congress -- which turned out to be run by Newt Gingrich. And last year, by asking his labor supporters to wait, Obama ensured -- unintentionally, of course -- that the next effort to revive organizing must wait until the next overwhelmingly Democratic Congress.

With the recess appointment of Becker still a viable option for the White House, the President's ability to issue Executive Orders, and the possibility of additional discussions regarding an alternative EFCA bill, it certainly might not yet be as final as that.

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The Senate has posted the roll call on the Becker cloture vote here. 

Let the political speculation begin.  What impact did the snow and the shutdown have?  What impact did Senator Nelson's proclamation have on participation?

These Senators did not cast a vote:

Brownback (R-KS) Byrd (D-WV) DeMint (R-SC) Ensign (R-NV) Graham (R-SC)

Gregg (R-NH) Hatch (R-UT) Hutchison (R-TX) Inouye (D-HI) Landrieu (D-LA)

Pryor (D-AR) Roberts (R-KS) Sanders (I-VT) Thune (R-SD) Vitter (R-LA)

Perhaps notably, Senators Landrieu (D-LA) and Pryor (D-AR) did not vote.  Their names are often mentioned as Dem dissenters on EFCA.  This list is certain to be dissected by the punditry and interest groups in days to come.

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The NAM_Shopfloor and Senatus twitter feeds are reporting, and media outlets are confirming, that the cloture motion to end debate on Craig Becker's nomination to the National Labor Relations Board has failed by a 52-33 margin.  As everyone seems to know nowadays, 60 votes are required to end a filibuster.

Observes NAM:  "Even with snow, a little surprised at small vote."

Boston's WBZ-TV's website notes:

The task for Democratic leaders turned more difficult when at least two Democrats joined Republicans in opposing the lawyer.

Nebraska Senator Ben Nelson was one such Senator, consistent with reports last night.  Politico reports that Sen. Blanche Lincoln (D-AR) also voted against cloture.

What now?   A recess appointment of Mr. Becker by President Obama remains a politically charged possibility.  A recess appointment made soon would serve until the conclusion of the next Senate session in late 2011. 

More commentary:

• "Becker Labor Board Nomination Held Up After Senate Cloture Vote" -- BusinessWeek
• "Obama Warns GOP He Will Use Recess Appointments" -- Huffington Post
• "Craig Becker Nomination Defeated as Cloture Vote Fails" -- FireDogLake
• "AFL-CIO Goes After Nelson For 'Hypocrisy' On Becker Nomination" -- The Hill 
• "Senate Prevents Confirmation Of Controversial Labor Nominee" -- ShopFloor.org

 

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In advance of a probable filibuster (with growing support) over Craig Becker's nomination to the National Labor Relations Board, Glen Spencer of the U.S. Chamber's Workforce Freedom Initiative and former Clinton-Gore advisor Peter Mirijanian swapped commentary on Fox News earlier today:

The anchor led with the angle that concerns have been raised about Mr. Becker's ability to implement elements of EFCA via administrative action. Challenged by the anchor, Mr. Spencer conceded "it would be difficult to get some of the ideas in the card check bill through administratively, but there's no question, I think, that Mr. Becker would try." In a wide-ranging defense of Mr. Becker's nomination, Mr. Mirijanian dismissed opposition as "politics" and suggested that Mr. Becker would not be able to impose EFCA by "administrative fiat."

As of right now, weather permitting, the Senate intends to take up the vote at around 5 p.m. today.

More commentary:

• "Nelson Joins GOP In Opposition to Obama Nominee" -- CNN Political Ticker
• "Senate Dem Nelson Joins Republican Filibsuter Against Obama's NLRB Choice" -- AFL-CIO blog
• "Ben Nelson to Filibuster Key Obama Labor Nominee" -- Huffington Post
• "Sen. Nelson (D-NE) Will Vote Against Cloture on Becker" -- ShopFloor.org
• "With Nelson, GOP Blocks Obama Labor Board Nominee" -- ABC News
• "Senate Votes Today On SEIU Lawyer For NLRB" -- Human Events
• "Blue Dogs Running For Cover Over NLRB Nominee" -- American Thinker

 

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Politico reports Monday night that Sen. Ben Nelson (D-Neb.) will support a Republican-led filibuster over President Barack Obama's nomination of Craig Becker to serve on the National Labor Relations Board:

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement. “This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand."

We have previously posted on concerns expressed by many that Mr. Becker might seek to implement elements of EFCA via Board decisions and/or rulemaking.  Tonight's Politico piece notes another EFCA connection:

Republicans have tried to make Becker's nomination a referendum on the Employee Free Choice Act, which would make it easier to unionize. In his statement, Nelson said Becker has made several statements that "fly in the face of Nebraska’s Right to Work laws."

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The Senate Health, Education, Labor & Pensions (HELP) Committee is scheduled for an executive session tomorrow to consider pending nominations by the President.  The Hill reports today, however,  that a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa) said the Committee will not be considering the re-nomination of Craig Becker to the NLRB this week.  Nonetheless, business groups continue to ramp up their opposition to the nomination:

“Yes, we will absolutely oppose the Becker nomination,” said Jade West, senior vice president of government relations for the National Association of Wholesaler-Distributors (NAW). “The NLRB, under the leadership of Becker, could implement the Employee Free Choice Act by fiat.”

The National Association of Manufactures (NAM) also sent a letter to the chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee opposing the nomination.

The Chamber, NAW and NAM were part of a 23-business coalition that wrote to senators last October to oppose Becker’s nomination.

Union lawyers have dismissed the business groups’ concerns in the past, saying such a board ruling would come under heavy legal challenge and only legislation changing labor law would allow the card-check process to take place.

Other commentators sympathetic to labor, however, are less dismissive.  In the Huffington Post's coverage of the nomination debate, Dmitri Iglitzin and Steven Hill write:

To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

* drastically shorten the time frame for holding union elections;

* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

* require equal access to both workers and the workplace for unions during campaigns; and

* increase the penalties on companies that violate their workers' legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.

Other commentary on the issue:

• "It's All Academic: Profs Push NLRB Nomination" -- TheTruthAboutEFCA
• "66 Academics to the Senate: Confirm Craig Becker to the NLRB Now" - FireDogLake
• Previous EFCAReport coverage here.

 

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The National Association of Manufacturers (NAM) has sent a letter to the Senate Committee on Health, Education, Labor & Pensions (HELP) opposing the re-nomination of SEIU Associate General Counsel Craig Becker to the National Labor Relations Board (NLRB).  President Obama re-nominated Becker recently after his nomination was returned from the Senate in late 2009.  Among NAM's many concerns about the nomination is the prospect that, following a legislative failure to enact EFCA, Mr. Becker may pursue its goals via the Board's administrative mechanisms:

Mr. Becker’s views indicate that he believes the NLRB has the authority to make certain decisions that are pending in proposed legislation. Such positions include redefining the supervisory status of frontline supervisors in order to place such employees into labor union bargaining units with other eligible employees.  Mr. Becker has written extensively and positively about how the NLRB could rewrite current union election rules in favor of union organizers, a decision that should be left to Congress. We are particularly concerned that if confirmed, Mr. Becker would seek to advance aspects of the jobs-killing Employee Free Choice Act through actions of the NLRB.

Both NAM and the U.S. Chamber of Commerce have requested Committee hearings on the nomination.

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Providing its analysis of the earlier WSJ piece, NAM's ShopFloor.org incorporates insight from other sources as well, and concludes:

And if the legislative path is blocked, there’s always the regulatory/administrative approach. As we’ve noted previously, one of President Obama’s nominees to the National Labor Relations Board is Craig Becker, an SEIU counsel who contends the NLRB can prevent employer involvement when a union seeks to organize the business. Becker is a fervent supporter of the Employee Free Choice Act and card check’s elimination of secret ballot elections.

Among the notable quotables highlighted by ShopFloor:

• Workforce Management:

“It’s kind of now or never for them,” said Brett McMahon, vice president of Miller & Long, a concrete subcontractor and a member of Associated Builders and Contractors. “If the chances are [lower] now to get something done, they may become truly impossible in the next Congress.”

• The Nation:

The battle over nominations to the NLRB, even more than EFCA, may be what really determines the extent of labor’s gains under Obama. Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB.

 

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That seems to be a question being asked by many people following the Senate consideration of President Obama's three nominees to the National  Labor Relations Board.  On Wednesday, the Senate H.E.L.P. Committee approved the nominations.  While the nominations of union attorney Mark Gaston Pearce and Republican Senate Committee policy director Brian Hayes were approved unanimously, eight of the twenty-three Senators voted against moving SEIU attorney Craig Becker's nomination forward.

Immediately following the Committee's vote, Sen. John McCain (R-AZ) placed a "hold" on Mr. Becker's nomination.  While editorializing on the Senator's intent, a piece in the anti-corporate publication In These Times identified some of the concerns being expressed about Mr. Becker thus:

As a legal scholar, Becker helped lay the intellectual foundation for the Employee Free Choice Act.

In one law review article, he suggested that much of the work of EFCA could be done through the existing regulatory structure. The NLRB administers the National Labor Relations Act, the primary legislation that governs labor/management relations.

Of course, the author in this case is clearly sympathetic to this course of action.  (In an interesting concluding note. she also suggests that Sen. Harry Reid (D-NV) might force the confirmation vote over McCain's hold, and that Democrats would likely prevail on a cloture vote on the confirmations -- all perhaps as soon as October 27.)

That Mr. Becker and allies on the Board might implement elements of the Employee Free Choice Act -- with or without the bill's passage by the Legislature -- is indeed one issue that has been raised by many critical of his nomination.  Both the U.S. Chamber of Commerce and the National Association of Manufacturers have sent letters to the Senate H.E.L.P. Committee expressing this concern.  Ranking Member of the Committee, Senator Michael Enzi (R-WY) acknowledged as much in his released statement the morning of the votes:

While I support moving the package forward as the Chairman and Ranking Member have done in previous Congresses and Senator Kennedy and I did back in 2006, I do have some serious concerns with Mr. Becker’s writings – particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without Congressional authorization.

Likewise, Committee Chair Sen. Tom Harkin (D-IA), who has resisted calls for a confirmation hearing on Mr. Becker's nomination, addressed the issue:

"As an academic Mr. Becker has written extensively on a variety of legal topics. He has taken a critical approach to existing law and pushed the boundaries of convention in his field. It’s clear, however, that he understands and respects the distinction between being an intellectual advocate and serving as an adjudicator on the Board. He is fully aware that as a member of the Board his role will be – and I quote from his responses to the Committee’s questions here: – to 'implement Congress’s intent as expressed in the law, to fairly consider all views … to deliberate with my fellow Board members, to utilize the wealth of knowledge and experience possessed by the Board’s career staff, and to fairly and impartially decide cases based on the relevant facts and applicable law.'

We will continue to follow these developments and report on them here.

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The Wall Street Journal, Associated Press, and Crain's Workforce Management report that Senator John McCain (R-AZ) placed a "hold" on Craig Becker's nomination to the National Labor Relations Board, blocking Senate confirmation, notwithstanding approval by the Senate HELP Committee.  From the WSJ this afternoon:

Becker’s nomination to the NLRB, which supervises union elections and referees disputes between employers and employees, has been a matter of dispute for months. The U.S. Chamber of Commerce has repeatedly pressed for a HELP Committee hearing, citing concerns about Becker’s writings on the labor law he’d help interpret if confirmed to the board. The business group says Becker’s written positions have been well outside the mainstream and they fear he’d disrupt the “delicate balance” in current labor law to disadvantage employers.

McCain voiced similar concerns in a letter to HELP Committee Chairman Tom Harkin of Iowa, also seeking a hearing. McCain wrote that Becker’s writings “indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” McCain added that he wanted a chance to question Becker about these positions in person and in public. Today’s 15-8 vote was taken without a hearing.

The HELP Committee also unanimously approved two other NLRB nominees, Mark G. Pearce, a Democrat and an attorney who represents unions, and Republican HELP Committee staffer Brian E. Hayes.

NAM's ShopFloor.org blog has additional comment in its post, "SEIU Attorney Craig Becker’s Nomination for NRLB Clears Committee."

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President Obama's three nominees to the National Labor Relations Board are headed Wednesday for a Committee vote by the Senate Health, Education, Labor and Pensions Committee.  Our observations about the climate in The Hill today: 

As card-check has stalled in Congress, business groups’ attention has increasingly turned to the administration, which has taken more action on labor’s priorities, according to Richard Hankins, the head of McKenna Long & Aldridge’s labor and employment practice.

“The shift in labor policy toward labor’s agenda is in these other areas right now,” said Hankins, who has represented employers before the NLRB.

We have previously noted the controversy which Mr. Becker's nomination has generated.  Likewise, as the Committee readies itself for action on the nomination, The Hill notes:

Like business groups, Senate Republicans on the HELP Committee have criticized Becker, much more than the Democrats’ other NLRB nominee, Mark Pearce, a Buffalo, N.Y., lawyer who practices labor law. Since their nomination by Obama in April, Becker has received close to 300 questions from GOP panel members, much more than the roughly 30 sent to Pearce, according to committee aides.

It is highly unusual for an NLRB nominee to receive a public hearing. The last such hearing was in 1993, according to one committee aide.
 

Hankins said board nominees are typically packaged together for Senate approval and win confirmation after closed-door negotiations between lawmakers.  “It is rare to have public hearings because of those dynamics and the opportunity to make a political deal,” Hankins said.

We will report the Committee's action tomorrow.

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On Tuesday, September 29, 2009, on behalf of the National Labor Relations Board, the U.S. Solicitor General petitioned the Supreme Court for certiorari in two cases which address whether the Board can continue working with three of its five seats vacant. Earlier this year, in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the D.C. Circuit Court of Appeals ruled that decisions issued by the “two-member Board” were invalid because the law does not permit the board to act without at least three members. This caused a split with the decisions of three other Circuits — the First, Second and Seventh — which have reached the opposite conclusion.

The Board’s petition urges the Supreme Court to resolve the split. As reported by the Associated Press, “[t]he uncertainty has thrown into question more than 400 decisions that clarified the rules of union organizing or decided whether there was merit to claims of unfair labor practices.”

While the issue proceeds toward probable Supreme Court resolution, the Board continues to act with only two members -- Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber.  Back in April 2009, President Obama indicated that he would nominate union lawyers Craig Becker and Mark Gaston Pearce to the Board.  It was not until he announced his third intended appointee, Brian Hayes, in July that he actually officially nominated them. 

Partisan gridlock -- which emerged in the 110th Congress on this issue when these seats opened late during the Bush administration -- has continued to preclude confirmation of any appointees.  And in July, the Chamber of Commerce sent a letter to the Senate Health, Education, Labor, & Pensions Committee asking for a thorough hearing on Mr. Becker's nomination.  The Chamber asserts that Mr. Becker, a former assistant general counsel of the Service Employees International Union (SEIU), has "extreme" and "unconventional" views of the National Labor Relations Act.  Some have speculated that a Board controlled by Chairwoman Liebman, and Messrs. Becker and Pearce would pursue not only frequent reversals of Board precedent on numerous issues, but also to impose elements of the Employee Free Choice Act by administrative regulation. 

Just before the last Congressional break in August, we speculated that President Obama might make recess appointments to place these three on the Board without Senate confirmation.  With no sign of confirmation proceedings currently on deck, and the Senate's "target adjournment date" of October 9, 2009 looming, this prospect seems even more plausible.  The healthcare debate may extend the congressional calendar significantly, but in the absence of some eleventh-hour political compromise on confirmation, it seems the President will face the prospect of making recess appointments or continuing to accrue risk as the Laurel Baye case makes its way toward eventual Supreme Court resolution.

More on this issue:

• "NLRB asks Supreme Court to rule on decisions by 2-member board" --PointOfLaw.com
• "NLRB Seeks Cert on Two-Member Board Issue" -- Workplace Prof Blog
• "Laurel Baye cert. petition filed by NLRB" -- NOLA Employers Blog

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On July 22, 2009, Rep. Zoe Lofgren (D-CA) entered an extension of remarks into the Congressional Record in support of the Employee Free Choice Act.  Rep. Lofgren submitted a July 20, 2009 speech by former NLRB Chairman William B. Gould IV to the 58^th Annual Conference of the Association of Labor Relations Agencies.

Chairman Gould served on the NLRB during the Clinton administration, and is a Stanford University law professor emeritus. He also has long been a critic of EFCA as currently drafted, while remaining an outspoken voice in favor of significant labor law reform. His comments earlier this week continue to reflect that position:

This significant legislative proposal warrants dispassionate examination in an arena which has been too frequently divided and polarized. My sense is that the bill even with proper amendments—and I am quite confident that if it is enacted it will be amended—will have a considerable impact on the workplace. EFCA and labor law reform contain some of the assumptions that I have held for more than four decades, i.e., that the Act is plagued with lethargic enforcement, creaky and convoluted administrative procedures and ineffective remedies, that it is not working well and that, as a result, some employees who wish to join unions are unable to do so.

As talk of “compromise” or alternatives emanate from Washington, Chairman Gould’s is likely to become a more important voice -- should EFCA’s proponents have any serious interest in truly intelligent and “dispassionate examination” of the issues involved. Chairman Gould’s prior criticisms of EFCA have consistently focused on Sections 2 and 3 -- the card-check and interest arbitration provisions.  But regarding Section 4, which would increase penalties against employers during organizing efforts and negotiations, Chairman Gould said:

I think that the Employee Free Choice Act is right on the mark in establishing a treble damage award for back pay. For too long, an award of back pay minus interim earnings has been regarded by everyone involved on all sides as a license fee for employer misconduct because back pay is cheaper than a union contract.

 

EFCA also provides for fines up to $20,000 for each employer violation as well as new contempt sanctions. And again, I think that the new law has it right in expanding and making more effective the Board’s injunctive authority for employer unfair labor practices—in much the same manner that the statute has established them for union unfair labor practices since the Taft-Hartley amendments.

Regarding the remainder of the bill, however, Chairman Gould still believes “there is much more room for debate.” Reiterating that he finds card-check an inferior method of selection, he endorses the current thoughts being circulated regarding quicker elections:

The answer here is to both expedite elections—to require that they be held within a couple of weeks of the union’s petition, as is done in the provinces of Ontario and British Columbia—and to reverse Supreme Court precedent excluding non-employee union organizers from company premises so that they can carry their side of the message to employees more effectively in the run-up to the ballot itself.

Likewise, Chairman Gould suggests that mandatory interest arbitration as a default proposition for all new bargaining relationships is over-reaching:

However, EFCA-sponsored interest arbitration, in contrast to the grievance or rights variety, is relatively untested in the private sector in the United States. In Canada, which has first contract arbitration in most provinces, the process is rare and used sparingly (except in Manitoba where it is automatic after a specific time period). The conundrum is that the potential for a mechanism like this must be available to rescue bargaining which is at a stall, and yet its mere availability can undermine the collective bargaining process itself which is furthered by the Act.

 

The proper approach here, it seems to me, is to provide that the mediator—perhaps in consultation with the NLRB itself—should certify after extensive mediatory efforts that collective bargaining is either at an impasse or dysfunctional. As it presently stands, EFCA simply allows for arbitration to be invoked after three months of collective bargaining and subsequent mediation. Not only is this period of time too abbreviated, but by spelling out a specific period of time after which arbitration is automatic, it encourages the parties to maneuver in anticipation of arbitration in a way which can erode the voluntary collective bargaining process. Moreover, this approach fails to take into account the fact that both sides are frequently learning for the first time as they put together their very first collective bargaining agreement.

 

Arbitration must be used sparingly, although it should remain available in the final analysis so as to shore up a relationship which might otherwise disappear.

Chairman Gould concluded his presentation with a number of additional reform recommendations -- encouraging NLRB rule-making; unfreezing jurisdictional guidelines; allowing expansion of state labor law; eliminating batching of NLRB appointees; and reducing the size of the Board, while extending terms and barring re-appointment.   A thorough read of this piece by all serious management representatives, advocates or attorneys is a must.

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Last week’s formal nomination of three prospective NLRB Members may foreshadow recess appointments in August. NLRB Members are required to be confirmed by the U.S. Senate, but Article II, Section 2 of the U.S. Constitution provides that "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."    

Recess appointments of NLRB Members are not unusual. Indeed, two of the three current vacancies were most recently held by recess appointees. With the Senate consumed with other business, and passage of the Employee Free Choice Act in question, it would not be surprising for labor leaders to push for recess appointments when the Senate goes on recess August 7. 

 

The NRLB has been operating with two members – one Democrat and one Republican – since January 2008. But the Circuit Courts of Appeal have recently split as to whether decisions made by a two-member Board are lawful.  This legal uncertainty may provide cover for immediate recess appointments.

 

Some have speculated that an Obama majority might attempt to implement some form of card check through re-interpretation of the National Labor Relations Act. Whether or not that occurs, an Obama Board is almost certain to reverse other Board precedent set forth in decisions issued during previous administrations, and will likely do so in a manner expanding the rights of unions and workers.  We have previously reviewed many of the possibilities in posts here and here. Organized labor obviously would prefer to see these changes sooner, rather than later.

 

Additional Reading: 

•  "Recess Appointments Frequently Asked Questions", Congressional Research Service

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If you've been following us (or Daniel Schwartz) on Twitter, you are likely aware that President Obama has named the nominee for the third and final vacant seat on the NLRB -- and has finally actually nominated the individuals he identified in April for the other two.  Brian Hayes has been tapped to join SEIU Associate General Counsel Craig Becker and Buffalo labor attorney Mark Gaston Pearce as Members of the National Labor Relations Board.  The press release issued by the White House describes Mr. Hayes as follows:

Brian Hayes, Nominee for Member of the National Labor Relations Board
Brian Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).  Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts. Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act. Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB. In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center. 

What remains to be seen is whether or not these three gentlemen will be confirmed by the Senate -- perhaps not so coincidentally amid all the talk about the future of EFCA, and the possibility of a sympathetic Board expanding the use of card-check without legislation -- or whether the President will have to make recess appointments. 

This Labor Board is certain to reverse Board law set forth in decisions passed during previous administrations, and will do so in a manner expanding the rights of unions and workers.  We have previously reviewed many of the possibilities in posts here and here.

More on the issue:

• "Card Check and the National Labor Relations Board" -- ShopFloor.org
• "Hayes to be Republican Nominee to NLRB" -- Workplace Prof Blog 
• "Third Nomination to NLRB" -- Ross Runkel's LawMemo

 

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Regular readers of EFCA Report are up to speed on the status of President Obama's proposed nominees to fill two vacant slots on the National Labor Relations Board.  In late April, we featured two detailed posts on a number of issues the Board is likely to tackle once fully constituted, noting several areas where the "Obama Board" is likely to reverse positions in decisions handed down by the "Bush Board." 

Today's Wall Street Journal cites to our observations:

Law firms are advising corporate clients to be on alert. If confirmed by the Senate, the two new board nominees -- labor-side lawyers Craig Becker and Mark Pearce -- would join longtime member and chairman Wilma Liebman to create "a majority bloc distinctly in favor of expanding the rights of unions and workers," law firm McKenna Long & Aldridge LLP said in a report addressing issues likely to be revisited by the NLRB. "Employers must…prepare for the resulting shifts in the regulatory landscape."

Once new nominees are in place, the board will face a lengthy agenda of issues including: whether more workers whose jobs fall in the gray area between salaried management and hourly laborers should be allowed to unionize; how much freedom workers should have to use company email systems to promote union membership; how much access union organizers should have to workplaces; and what constitutes unacceptable intimidation by employers seeking to oppose union organizing drives.

An additional interesting item from the WSJ piece regarding the new Board and EFCA:

[Current Board Chair Wilma] Liebman said she is "agnostic" on the proposed Employee Free Choice Act, the labor-backed proposal in Congress that would make it easier for unions to organize workers without secret ballot elections as well as give federal arbitrators authority to impose contract settlements in cases where labor and management can't conclude deals.

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Over a month ago, on Friday, April 24, 2009, President Obama announced his intention to nominate SEIU counsel Craig Becker and union attorney Mark Pearce as Members of the National Labor Relations Board.  But since then, the White House has declined to formally nominate either.  Why the delay?  Some insight this week via Kiplinger: 

Since early 2008, the two existing board members, one Democrat and one Republican, have acted under a legal maneuver blessed by the Bush Justice Department that allowed them to issue hundreds of decisions in less controversial cases on which they agreed. But on May 1, the U.S. Court of Appeals in Washington ruled that a decision by the two members doesn't count because the board lacked a quorum. On the same day, a federal appellate court in Chicago took the opposite view, holding that a separate decision taken by the two members was appropriate and binding.

With the courts at odds, confusion reigns. Dozens of companies are going to court to challenge other rulings, but the two existing NLRB members say they will continue to issue rulings when they agree. The Washington court gave the board an easy out, saying that once a quorum is present, the board can reaffirm all of the rulings in question. But there's the rub.

Obama has announced his intention to nominate two members  -- Craig Becker, the associate general counsel to the Service Employees International Union and Mark Pearce, who has teaches labor law -- but has yet to submit the paperwork. When he does, it will take several months to win confirmation. In the meantime, the Board is in limbo, as are the companies and workers who need answers.

In addition to rubber-stamping all of the questionable two-member Board decisions, the Obama Board, headed by Chairwoman Wilma Liebman, is likely to begin overruling current law set in several areas by the fully-constituted Bush Board.  We outlined several of these issues in previous posts here and here.  While the passage quoted above suggests it might be some time before employers need to fully contemplate that, the Kiplinger piece continues:

There is another option -- a recess appointment this week. But that's the kind of move that Obama is likely to be reluctant to take because of the anger it arouses among the opposition party. Still, it may be the lesser of the evils facing the NLRB and those who depend on it.

On the one hand, President Obama must certainly be weighing the risks of enraging the GOP filibuster bloc by making a recess NLRB appointment at a time when he is seeking to have his first Supreme Court justice confirmed.  On the other, he may need to show organized labor some attention with EFCA's progress slowed and the President having been less than entirely enthusiastic about the bill in its current form.  Employers would be wise to keep an eye on this in the coming week.

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At the National Review Online, former Board Member Peter Kirsanow joins the chorus of voices taking issue with today's Washington Post editorial.  In "EFCA Compromise Nonsense," Kirsanow asserts:

First, the idea that the EFCA amendments presently being floated constitute a "compromise" is a peculiar usage of the term. As the editorial itself notes, EFCA opponents remain monolithically opposed to any form of the bill. The "compromise" is merely a recognition among Democrats that they can't muster the needed support for EFCA from within even their own ranks.

 

 

Second, the allegedly "unfair barriers" to unionization that the WaPo laments were in place 50 years ago when unions represented 35% of the private-sector workforce. They were in place 30 years ago when 24% of the workforce was unionized. And they're essentially the same today when only 7.5% of the workforce is unionized. Did the WaPo run an editorial decrying the unfairness of the system when unions were in ascendance?

 

   *    *    *

 

The "quickie election"/equal access "compromise" is not a response to an unfairly tilted playing field. It's an attempt to salvage some aspects of a seriously flawed bill that may resuscitate the fortunes of labor unions but does little, if anything, to protect employees' rights or the ability of American employers to compete.

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In advance of Thursday's Senate Committee Hearing, yesterday we posted some of the most recently decided cases likely to be revisited by Chairwoman Liebman's National Labor Relations Board, once fully constituted.  While the initial post focused on decisions criticized during the December 2007 congressional hearing, there are additional issues likely to be reviewed by the incoming Board early in its tenure.  These include:

• IBM Corp., 341 NLRB 1288 (June 9, 2004), in which the Board returned to its precedent of not extending Weingarten rights to non-union employees.  In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court determined employees in unionized settings are entitled to have a union representative present at investigatory interviews conducted by employers which the employee reasonably believes could lead to discipline.  Until the decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (July 10, 2000), the Board had never extended Weingarten rights to non-union employees.  Chairwoman Liebman joined with the majority in Epilepsy Foundation, and dissented in IBM Corp. 
• Sheet Metal Workers, Local 15, 346 NLRB 199 (January 9, 2006) and Laborers Eastern Regional Organizing Fund, 346 NLRB 1251 (April 28, 2006), wherein the Board addressed the issue of what constitutes "picketing."  Under the NLRA, picketing can be unlawful in certain situations, while "handbilling" is generally considered protected free speech.  In both of these cases, the Board found that unions engaged in picketing because their behavior created a physical barrier to the worksite.  These cases left open, however, the question of whether bannering by itself automatically constitutes picketing.  Bannering is a practice in which  union representatives hold a large banner in front of an employer’s facility criticizing the employer’s employment practices without actually creating a physical barrier to the employer’s facility
• Oakwood Care Center, 343 NLRB 659 (November 19, 2004), in which the Board returned to its decades old rule that prohibits the certification of "multi-employer bargaining units" without the consent of the employers involved.  It held that Section 9(b) of the NLRA prohibits the Board from recognizing a bargaining unit beyond a single employer unit.
• On February 26, 2008, the National Labor Relations Board issued a notice of proposed rules in which it proposed creating a new type of jointly-filed representation (RJ) petition that would shorten the period between the filing of a petition and the election. According to the proposed rule, the RJ petition would be filed jointly by a union and employer. It would require an election within 28 days, as opposed to the 42 days currently set as the target for a union-filed RC petition.  Also, it would not require the 30 percent showing of interest unions must present to file an RC petition.  In addition to shortening the deadline for conducting elections, an RJ petition would require the parties to cede authority to the Regional Director to resolve any pre-election disputes, meaning there would be no right to appeal to the Board.  Finally, unfair labor practice (ULP) charges would no longer block elections, but instead would be resolved in any post-election proceedings.

Finally, with congressional support for card check on the wane, organized labor may encourage its new allies on the Board to shorten the time period for elections. The current 42-day standard has been in place since 1996, when the Board set the measure pursuant to the Government Performance and Results Act. The Board appears to be free to change that standard at any time without any formal opportunity for public comment.

If eventually nominated and confirmed, as expected, Craig Becker and Mark Pearce will join Chairwoman Liebman, as a three-vote majority capable of reversing much of this case-law, and advancing other elements of a pro-labor agenda, even without legislative assistance.  Employers must plan accordingly.

 

 

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In the highly unlikely event that the push to pass the Employee Free Choice Act fails to generate any legislative labor law reform this year, there will still be significant changes in the law for which employers must be prepared.  President Obama last week took the first steps toward filling the three existing vacancies on the National Labor Relations Board by announcing his intended nominees -- SEIU counsel Craig Becker and New York union attorney Mark Pearce.  If confirmed, these two men will join Chairwoman Wilma Liebman as a majority bloc distinctly in favor of expanding the rights of unions and workers.  This Board is certain to reverse several precedents set by the previous administration's Board.

Employers wondering what decisions might be considered high priority for such attention should look to the many Board decisions issued during September 2007.  Issued in the closing weeks of then Chairman Battista's term, many of these decisions split as 3-2 votes.  Each modified existing Board law, and each contained a strong dissent by the current Chairwoman.  They provided fodder for highly critical congressional hearings to condemn what some saw as a partisan anti-labor shift by the Board.  Chairwoman Liebman testified at one such hearing, and provided her insight on some of these cases. 

Among the issues likely to be revisited are those addressed in the following September 2007 cases:

• In Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative will not bar the processing of a conflicting petition filed during the first 45 days after recognition. Thus, employees seeking a decertification election (or a rival union seeking certification for that matter) can file a petition soon after an employer voluntarily recognizes a union, and in a departure from its past practice, the Board will not dismiss the petition as barred. Following the 45 day period, the recognized union still enjoys a presumption of majority status for a "reasonable" period of time.
• In Toering Electric Co., 351 NLRB No. 18 (Sept. 29, 2007), the Board significantly altered its standards in “salting” cases. Salting occurs when a union organizer seeks employment at an employer solely for the purpose of organizing the other employees and obtaining recognition of the union. Often "the salt" works solely to provoke the employer into conduct which then forms the factual basis for organizing propaganda and unfair labor practice charges. After the organizing effort, the salt often quits and moves on to another workplace. Until this decision, the practice was entirely lawful and salts were protected from discriminatory refusals to hire, or terminations, on the basis of their union activities. In Toering, however, the Board placed on the General Counsel the ultimate burden of proving an individual’s genuine interest in seeking to establish an employment relationship with the employer. Now, those individuals who do not genuinely seek an employment relationship do not qualify as “employees” protected by the Act.
• In Jones Plastic & Engineering, 351 NLRB No. 11 (Sept. 27, 2007), the Board clarified that advising strike replacement workers that they are employed “at-will” does not undermine their status as permanent replacements, entitled to continued employment at the conclusion of a strike. Economic strikers who make unconditional offers to return to work are entitled to immediate reinstatement unless the employer has hired a permanent replacement for the worker during the strike. In order to avail itself of this position, however, the employer must establish that there was a mutual understanding between the employer and the replacement worker that the replacement was “permanent.” A previous Board case, Target Rock, 324 NLRB 373 (1997) suggested that employer statements advising replacements of their “at-will” status (e.g., “you may be terminated at any time with or without cause”) were inconsistent with an assertion of permanent replacement status. In Jones, the Board overruled that prior holding.
• Finally, in BE&K Construction Co., 351 NLRB No. 29 (Sept. 29, 2007), the Board held that the filing and maintenance of a reasonably based lawsuit does not violate the National Labor Relations Act, regardless of the employer’s motive for bringing the suit. Following the United States Supreme Court’s unanimous rejection of the Board’s 1999 decision in BE&K Construction Co., 329 NLRB 717, on remand, the Board has held that the First Amendment right to petition protects employers who file reasonably based lawsuits against unions. Accordingly, even if a lawsuit is filed by an employer in order to retaliate against a union, and the case is ultimately dismissed, the actual filing and prosecution of the case will not constitute an unfair labor practice unless the suit is “objectively baseless,” “if ‘no reasonable litigant could realistically expect success on the merits.’”

Another case certain to be re-assessed is Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB No. 70 (December 16, 2007).   Another 3-2 decision, it held an employer did not violate Section 8(a)(1) of the NLRA by maintaining a policy prohibiting employees from using the employer’s e-mail system for any “non-job-related solicitations.”  Addressing the maintenance of the policy, the Board majority reiterated that under Board precedent, absent discrimination, employees have no statutory right to use an employer’s equipment for Section 7 purposes.  With respect to the alleged discriminatory application of the policy regarding discipline issued for specific e-mails, the majority held that “discrimination under the Act means drawing a distinction along Section 7 lines.”  This latter analysis marked a departure from prior Board holdings.

Finally, a series of decisions known as the "Kentucky River" cases came down in 2006, in which the NLRB clarified the definition of "supervisor" under the National Labor Relations Act.  This set of decisions caused significant consternation among labor unions and their friends in Congress who accused the Board of attempting to disenfranchise employees by exempting them from the Act as "supervisors."  In response to these decisions,  Rep. Robert Andrews (D-NJ) introduced H.R. 1644, the RESPECT Act, which would narrow the definition of "supervisor" in the NLRA and allow unionization of greater numbers of workers -- many likely considered front-line supervisors by employers.  With 164 co-sponsors, the bill passed Committee by a 26-20 vote before stalling.  It is possible that we have not yet seen the re-introduction of the RESPECT Act in the 111th Congress, because the bill's proponents believe the Obama Board will reverse the Kentucky River decisions through its own procedures.

Thursday's hearings will likely advance significantly the process toward the nomination and confirmation of Messrs. Becker and Pearce and the return soon of the Board to a full complement of Members.  Employers must follow these developments closely and prepare for the resulting shifts in the regulatory landscape.

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