Card Check and the National Labor Relations Board

By July 10, 2009General, Labor Unions

President Obama on Thursday announced his intention to nominate Brian Hayes to serve on the National Labor Relations Board, filling the position allocated to the minority political party. Hayes is the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), and he has a 25-year career in the private sector as a labor law attorney. A stellar selection, albeit a loss to the Senate HELP Committee and congressional consideration of labor issues.

The President in April had announced his intent to nominate two Democratic (majority) members of the NLRB, the SEIU’s general counsel, Craig Becker, and Buffalo labor lawyer Mark Pearce. Becker in particular is a close ally of the White House, having served on the transition committee and having even drafted one of the White House’s early executive orders on labor issues.

With current Chairman Wilma Liebman and NLRB member Peter Schaumber on board, the President’s nominees will restore the NLRB to its full, five-member status.

We welcome a full board with some trepidation. Organized labor demonized the NLRB throughout the Bush Administration for political purposes, especially to flack for the Employee Free Choice Act. Senate Democrats blocked Bush nominees to the board, and Vice President Joe Biden has gone so far as to label members “black shirts,” a scurrilous term that should be eliminated from the public debate.

With organized labor frustrated by its inability to ram the anti-democratic Employee Free Choice Act through Congress, it’s entirely possible the unions will focus their efforts on NLRB as a more malleable forum, one where the law can be stretched, massaged and “reinterpreted.”

Workforce Management, an online publication, had a good piece recently exploring those possibilities, “NLRB Decisions Could Make Card Check a Reality,” which the bald observation: “There is a possibility that the National Labor Relations Board could rule, if the right case comes along, that a company must recognize a union formed through the card-check process. ”

More likely…

[Precedent] doesn’t stand for much at the NLRB, and its new chair, Democrat Wilma Liebman, may be inclined to bolster card check through adjudication, according to Jim Rowader, vice president and general counsel at Target.

“She’s very open to rule making to make significant changes to labor law,” Rowader says. “It will result in a lot of conflict and litigation all the way up to the Supreme Court.”

Welcome to the NLRB, gentlemen. We respectually recommend that you leave the writing of law to Congress.

UPDATE (4:10 p.m.): The President has now nominated all three. See below:

Listing of 75 Items containing exact words National Labor Relations Board in the same order.

1 . Nomination:  PN734-111
Mark Gaston Pearce, to be a Member of the National Labor Relations Board, National Labor Relations Board; vice Peter N. Kirsanow.
Received: July 09, 2009
Referred: Senate Health, Education, Labor, and Pensions
Latest Action: July 09, 2009 – Received in the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

2 . Nomination:  PN733-111
Brian Hayes, to be a Member of the National Labor Relations Board, National Labor Relations Board; vice Robert J. Battista, term expired.
Received: July 09, 2009
Referred: Senate Health, Education, Labor, and Pensions
Latest Action: July 09, 2009 – Received in the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

3 . Nomination:  PN732-111
Craig Becker, to be a Member of the National Labor Relations Board, National Labor Relations Board
Received: July 09, 2009
Referred: Senate Health, Education, Labor, and Pensions
Latest Action: July 09, 2009 – Received in the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

4 . Nomination:  PN731-111
Craig Becker, to be Member of the National Labor Relations Board, National Labor Relations Board; vice Dennis P. Walsh.
Received: July 09, 2009
Referred: Senate Health, Education, Labor, and Pensions
Latest Action: July 09, 2009 – Received in the Senate and referred to the Committee on Health, Education, Labor, and Pensions.

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