Brian Hayes Archives - Shopfloor

Sens. Enzi, Hatch Were Right About Craig Becker, Radicalized NLRB

By | Economy, General, Labor Unions | 5 Comments

Sens. Mike Enzi (R-WY) and Orrin Hatch (R-UT) have led the opposition in the Senate to the President Obama’s nomination and subsequent recess appointment of the former SEIU and AFL-CIO counsel Craig Becker to the National Labor Relations Board. The NLRB’s outrageous complaint against The Boeing Company this week for expanding operations in South Carolina proves their point: Becker’s appointment has contributed to a radicalized NLRB that has abandoned its quasi-judicial role for pro-labor activism.

The Senators issued a news release in February as members of Senate Health, Education, Labor, and Pensions Committee urging President Obama to withdraw his latest nomination of Becker made in January.

“I oppose the nomination of Craig Becker absolutely. Over the past ten months, Mr. Becker has made his intention and bias clear. The NLRB is meant to be an impartial authority ensuring organizing freedom in the workplace, not a politicized institution bent on increasing unionization rates at the cost of American jobs. Last year, Mr. Becker was appointed against the will of the Senate. This year, I urge President Obama to work with Senators to identify a replacement nominee,” Senator Enzi said.

“Last year, the Senate rejected Mr. Becker’s nomination because there were serious questions as to whether he could remain impartial while serving on the NLRB. These questions have not been resolved and, if anything, it is more clear now that Mr. Becker is more interested in furthering a pro-union political agenda than in upholding our nation’s labor laws. If the President, as he stated in the State of the Union, is serious about relieving pressure on the business community and ushering in a new era of bipartisanship, he should withdraw the Becker nomination and work with us to find someone that both parties can support,” Senator Hatch said.

Our emphasis. They called it, didn’t they?

As a recess appointee, Becker can continue to serve without Senate confirmation through the end of 2012. Meanwhile, NLRB Chairman Wilma Liebman’s term expires Aug. 27, 2011.

Rumors are circulating of President Obama nominating Becker to Liebman’s five-year term. if Senate Republicans continued to block Becker’s nomination (a safe bet), the President might then recess appoint him to the vacancy. That maneuver would give Becker a position on the NLRB through the end of the 113th Congress, or December 2014.

(UPDATE, Clarification, 9:55 p.m.: Re-reading this Congressional Research Service publication on recess appointments, it appears a recess appointment could not last through 2014. Recess appointments are valid through the next session of the Senate. Thus, a recess appointment made in 2011 or between the two sessions of the 111th Congress would extend through 2012. One made in 2012 — during a spring recess, for example — would extend through the end of the next session, i.e., the first session of the 113th Congress, or through 2013.)

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Pushing Labor’s Agenda Through the Executive Branch, the NLRB

By | Briefly Legal, General, Labor Unions | One Comment

President Obama visited a Fairfax, Va., family last September to promote his Administration’s agenda before the 2010 elections. Asked about the prospects for passing the Employee Free Choice Act, i.e., card check, the President said [our emphasis]:

Frankly, we don’t have 60 votes in the Senate. So the opportunity to actually get this passed right now is not real high. What we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.

The move (discussed below) by the National Labor Relations Board to redefine acceptable bargaining units and allow “micro unions” sure looks like the President’s plan put into action, doesn’t it? Don’t pass a law, don’t even hold a formal rule-making procedure, just solicit amicus briefs and then issue a ruling that overturns decades of precedent and rewrites labor law.

Three U.S. Senators have registered their objections to the NLRB’s attempt to circumvent the policymaking branch of government, Congress. In a March 8 letter to the board, Sens. Mike Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA) wrote:

As United States Senators and members of the Health, Education, Labor and Pensions (“HELP”) Committee, we have a vested interest in the outcome of the underlying case. When an independent government agency, acting within its discretion, creates policy that conflicts with federal statute, or attempts to circumvent the legislative or rulemaking process, Congress must weigh in to ensure constitutional boundaries are not crossed. What we have learned from various stakeholders is that the decision in Specialty Healthcare could result in changing the determination of appropriate bargaining units in every workplace under the Board’s jurisdiction. We believe such a major change should only be done by amending the statute, which is the exclusive province of Congress.

The Senators acknowledged that the board can at times change policy through adjudication, i.e., ruling on a case, and it would be appropriate to seek amicus briefs in those circumstances. However, that process should not be a substitute for formal rulemaking, they argued.

The NLRB voted 3-1 to go ahead with its review in the Specialty Healthcare case, with the three votes coming from the Democratic members: Chairman Wilma Liebman, former labor lawyer Mark Pearce, and former SEIU and AFL-CIO counsel Craig Becker, a recess appointee. In his dissent, the sole Republican on the board, Brian Hayes, delineated how the majority’s overreach in entering the policymaking realm. Indeed, neither of the two parties in the case sought the broad review the board is undertaking. Hayes concluded: Read More

Labor Board Proposes New Posting Requirement

By | Human Resources, Labor Unions | 5 Comments

The National Labor Relations Board (NLRB) today released a notice of proposed rulemaking that would require employers to post a notice to employees informing them of their rights under the National Labor Relations Act. Such a concept follows the recent move by the Obama Administration to require a similar posting for the employees for federal contractors.

In its proposal, the Board indicated that a majority believes that “many employees protected by the NLRA are unaware of their rights.” Brian Hayes, the lone Republican who serves on the Board, dissented from the proposal, arguing that the Board lacks the authority to impose such a requirement on employers. Hayes contends NLRB can only require such a posting after a finding of an unfair labor practice by an employer.

However, this notice for proposed rulemaking goes beyond just requiring employers to post a poster in their workplace, as they are required to do under other employment laws like the Family and Medical Leave Act and the Fair Labor Standards Act. Should this proposal be enacted as drafted, employers who communicate with their employees through web and e-mail would also be required to transmit this new posting of employee rights electronically.

We’ve long been troubled by and have predicted the NLRB’s intention to reinterpret U.S. labor law outside of Congress’ purview in order to expand union membership. Today’s announcement is certainly evidence that the board is well under way.

Labor Round Up

By | Human Resources, Labor Unions | No Comments

We’ve figured it has been awhile since we’ve done a rundown of labor issues in the news so here it goes:

Senate Confirms NLRB Nominees Pearce and Hayes, not Becker

By | Labor Unions | No Comments

The Senate today confirmed the nominations of both Mark Pearce and Brian Hayes to the National Labor Relations Board, as part of a broader package of 64 nominees approved via unanimous consent. Notably missing from the package was the controversial nomination of Craig Becker, the former SEIU and AFL-CIO counsel, to the labor board.

In refusing to approve Becker for a full term, the Senate has acknowledged the legitimate objections raised against his nomination based on years of writing that advocated excluding employers from having any role in whether businesses should be organized. The Senate showed restraint; let’s hope when it comes to enforcing labor law and regulations, the NLRB does the same.

More background:

  • In March, President Obama made a recess of appointment of Becker and Pearce, and Becker can continue to serve through December 2011 under that appointment. Although nominated, Hayes did not receive a recess appointment.
  • Pearce, a Democrat, and Hayes, a Republican, will now be able to serve the full terms at the Board to which they were nominated. (For Pearce, a labor lawyer from Buffalo, that means through Aug. 27, 2013; for Hayes, a Republican committee attorney, it’s Dec. 16, 2012.)
  • Once the two nominees are sworn in, the NLRB will have a full complement of five members, but only until the term of Republican Peter Schaumber expires at the end of August.


UPDATE: The NRLB issued a news release on the Pearce and Hayes confirmation.

A Few Other Notes about Recess Appointments to the NLRB

By | General, Labor Unions | One Comment

The White House had obviously kept Wilma Liebman, chairman of the National Labor Relations Board, in the loop on President Obama’s intention to make recess appointments to the NLRB. At 4:08 p.m. the board’s press shop Tweeted its news release, “White House announces recess appointments of two attorneys to fill Board vacancies.” You would hope an independent, quasi-judicial agency would keep a little distance from the political moves of the White House, but welcoming new members is harmless enough, probably.

The labor group, American Rights at Work, was naturally delighted with the appointment of two labor lawyers to the NLRB, Tweeting, “Obama has appointed Craig Becker and Mark Pearce to the NLRB. We can’t wait for them to get to work for working people!” You would hope an independent, quasi-judicial agency would get to work interpreting the law.

So now three Democrats and one Republican will comprise the Board. The term of the Republican, Peter Schaumber, ends on August 27, 2010. The possibility, however theoretical, of an NLRB made up of three members of only one party should give pause. The term of the general counsel, Ronald Meisburg, a Bush appointee, also expires in August. Unlike most federal branch agencies, the NLRB’s general counsel must be confirmed by the Senate, so more maneuvering is possible. Brian Hayes, the pending Republican nominee whom President Obama did not appoint, is likely to buffeted by the political winds.


The Hill (blog), “Labor group praises Obama for appointing Becker, Pearce

UPDATE (6:45 p.m.): Bloomberg reports, “Obama Bypasses Senate, Makes Appointments to NLRB, Treasury, quoting the NAM’s Keith Smith:

“You will see a radical overhaul of the labor law system,” said Keith Smith, director of employment and labor policy at the Washington-based industry group. “You could see significant limits on employers’ ability to communicate.

NLRB Quorum to be Argued Before U.S. Supreme Court Today

By | Briefly Legal, General, Labor Unions | One Comment

The U.S. Supreme Court today holds oral arguments in the case, New Process Steel v. National Labor Relations Board. The question presented:

Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

As the ScotusWiki entry on the case explains: “The events leading to this case have their origins in late December 2007, when the Board had four members. With the terms of two of those four members about to expire, the Board delegated its authority to a ‘group of three or more members.’ One of those three members left a few days later, leaving two Board members – who have made all NLRB decisions since then.”

This dilemma was caused when President Bush’s recess appointments were blocked by Senate Democrats after Senate Majority Leader Harry Reid (D-NV) began the practice of scheduling pro forma sessions to prevent the occurrences of recesses.

The U.S. Seventh Circuit of Appeals on May 1, 2009, upheld a decision by the two-member board, recognizing the smaller quorum. On the same day, however, the D.C. Circuit ruled that the Board must have at least three sitting members. Several hundred decisions by the smaller NLRB could be in jeopardy.

Big Labor and its allies in Congress have challenged the legitimacy of the smaller National Labor Relations Board to argue for approval of President Obama’s nominees to the NLRB, including the controversial SEIU counsel Craig Becker. If the President decides to make Becker his first recess appointment — something that could occur as early as next week — Becker’s defenders will cite the Supreme Court case as one reason. But of course you don’t have to have to appoint a radical labor union counsel to achieve a larger quorum. You can simply start with Senate confirmation or a recess appointment of the other two nominees, Mark Pearce and Brian Hayes.

Earlier posts on Craig Becker.

Employers Still Have the Right to Oppose Becker Nomination

By | General, Labor Unions | No Comments

Thanks to the Mid-Atlantic snowstorm, Senate debate on the nomination of SEIU counsel Craig Becker to the National Labor Relations Board has been postponed until Tuesday. A cloture vote is now anticipated after 5 p.m.

Opposition to Becker is strong among the business community:

Kevin Williamson, an editor at National Review, analyzes Becker’s anti-employer writings and calls Becker The ‘Shut Up’ Candidate“:

He has argued that businesses should be prohibited from presenting the case against organizing unions — to their own workers, on their own property, on their own time. And if secret-ballot elections survive his card-check dreams, he doesn’t want anybody taking too close a look at any possibly fraudulent election: He has written that employers should be banned from placing observers at the polls or challenging ballots. He argues that businesses should be compelled to open up their own private property so that union organizers may conduct their electioneering on the premises.

So what if the organizing vote is fraudulent? Or marked by the trademark violence and intimidation tactics long associated with Big Labor? Becker’s answer, in his own words, is this: “Employers should have no right to raise questions concerning voter eligibility or campaign conduct. . . . They should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conduct. On the questions of unit determination, voter eligibility, and campaign conduct, only the employee constituency and their potential union representatives should be heard.” Legalese for: “Shut up.”

The Senate breaks next week for the Presidents Day recess, and buzz is picking up about a possible recess appointment for Becker. The unions are signaling their support for the move, a Politico article suggests:

“They can’t let the minority party call the shots when it comes to the handling of critical nominations,” Bill Samuel, legislative director of the powerful AFL-CIO, said, calling on Obama to consider recess appointing Becker if his nomination stalls.

According to the Congressional Research Service, a recess appointment made in mid-February would serve until the conclusion of the next Senate session, i.e., the end of 2011.  One wonders: If President Obama were to recess appoint Becker, what would happen to the two, non-controversial nominees, Mark Pearce, the Democrat, and Brian Hayes, the Republican? Recess appointments also, or straight up-and-down Senate votes allowing them to complete terms, which for Hayes is through 2012 and for Pearce, 2013?

Finally, as previously noted, NLRB Chairman Wilma Liebman on Friday took the unusual step of getting involved in the Senate confirmation battle by issuing a news release decrying the lack of a full quorum on the NLRB. She omits the fact that President Bush’s nominees to fill the vacancies in 2007 and 2008 were blocked by the Senate majority, who also prevented recess appointments by scheduling regular pro forma sessions.

The Hill, “Labor board chief wants vote on NLRB nominees

Senate to President: Reconsider NLRB Nominee

By | Labor Unions, Regulations | No Comments

Amid the health care and debt debates on Dec. 24, the Senate conducted a bit of low-profile but welcome business, sending back to the White House a number of controversial nominees made by President Obama.

Included in the list of too-hot-to-touch nominees is Craig Becker, counsel for the Service Employees International Union nominated to serve on the National Labor Relations Board. Becker has proposed a radical shifting of employee-employer relations to force unionization of workplaces. The National Association of Manufacturers formally opposed his nomination.

Despite Becker’s outside-the-mainstream views, the Senate Health, Education, Labor, and Pensions Committee confirmed his nomination without even holding a hearing to hear Becker’s testimony. Sen. John McCain (R-AZ) subsequently put a hold on Becker’s nomination.

Here’s the Senate’s rejection of the nominee made via a procedural move as reported on page S14139 of The Congressional Record:

Mr. CARDIN. As in executive session, I ask unanimous consent that all the nominations received by the Senate during the 111th Congress, first session, remain in status quo, notwithstanding the December 24, 2009, adjournment of the Senate, and that the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following
exceptions: PN1119, COL David Teeples; Calendar No. 32, Dawn Johnsen; Calendar No. 205, Mary Smith; Calendar No. 312, Christopher Schroeder; Calendar No. 488, Edward Chen; Nos. 491 and 492, Craig Becker, and Calendar No. 579, Louis Butler.
The PRESIDING OFFICER (Mr. PRYOR). Without objection, it is so ordered.

The Washington Post briefly reported the Senate’s action at its Federal Eye blog. Edward Hopson at the Wyatt Employment Law Report also notes Becker’s problems and reports that the other two nominees to the NLRB — former Republican Senate staffer Brian Hayes, and Buffalo, N.Y., labor lawyer Mark Pearce — were not voted on by the Senate.

The President can send Becker’s nomination back up to the Senate in 2010, but might we see the first occasion for an Obama recess appointment? In the Bush Administration, Senate rejection prompted recess appointments (see CRS report), but the Obama Administration has yet to take that step in light of the Democratic majority in the Senate.

Whatever the next steps, the Senate’s action is a clear statement from the Democratic majority that the nomination of a top union lawyer with a history of seeking to marginalize employers was politically untenable.

UPDATE 4:40 p.m. The Senate’s action occurred under Rule XXXI, Paragraph 6, of the Standing Rules of the Senate. Also, this Point of Law post covers the Senate’s decision to return the nomination of two controversial judicial nominees, Louis Butler and Edward Chen.

On NLRB Nominees, Confirmation Hearing Equals Accountability

By | Labor Unions | No Comments

The Wall Street Journal today editorializes on President Obama’s three nominees to the National Labor Relations Board and the need for the Senate HELP Committee to hold confirmation hearings to delve into the records and thinking of the candidates, in particular, former SEIU counsel Craig Becker. From “Acorn’s Ally at the NLRB,” with the sub-hed, “Obama appoints an SEIU man with ties to Blago”:

Mr. Becker is associate general counsel at the Service Employees International Union (SEIU), which is most recently in the news for its close ties to Acorn, the disgraced housing shakedown operation. President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Yet now that he could soon have the power to act on this conviction, Mr. Becker won’t tell Congress if this is what he still believes. In written responses to questions from Republican Orrin Hatch, Mr. Becker promised only to “maintain an open mind about whether [his] suggestions should be implemented in any manner.” That sounds like his mind is made up but he won’t admit it lest it hurt his confirmation.

The Journal observes that it’s not unusual for nominees to the bipartisan NLRB to be packaged together for a confirmation vote without a hearing, and in this case, Sen. Mike Enzi (R-WY), ranking Republican on the HELP Committee, understandably wants to ease things for the GOP candidate, his former committee aide, Brian Hayes. (The other nominees is Mark Pearce, a longtime labor lawyer from Buffalo.)

But too much is at stake with the National Labor Relations Board, and the pro-labor majority could push organized labor’s jobs-killing agenda through regulation and rulings, achieving what could not be achieved through Congress.

We posted on the nominees yesterday at the Manhattan Institute’s legal blog, Point of Law, commenting: “You would think that an Obama Administration, intent on transparency, would insist that its nominees receive the public scrutiny that comes with confirmation hearings.”

Accountability demands a hearing.