Yee-haw – we felt it was about time that we did another labor round up at the shopfloor.org corral.

Recusal refusal: The Wall Street Journal echoed our concerns with the National Labor Relations Board when it published an editorial earlier that examines recess-appointed NLRB member Craig Becker’s conflict of interest with his consideration of NLRB cases that involve his former employers – the AFL-CIO and the SEIU. 

Ch-ch-ch-ch-Changes: Can’t help but to think of the lyrics of the old Bowie tune when we learned of Anna Burger’s impending departure from the labor groups Change to Win and the SEIU: “I still don’t know what I was waiting for And my time was running wild”. And run wild they did. During Ms. Burger’s time the labor group has tirelessly advocated expanding government, the jobs-killing Employee Free Choice Act and radical changes at the NLRB to seat one of their own (Craig Becker.) Perhaps she realized: “Every time I thought I’d got it made It seemed the taste was not so sweet.”

When the Data Doesn’t Help Your Case, Question the Data! The top brass over at OSHA have had a hard timing understanding why injury and illness rates have shown such marked improvement over the years. So instead of acknowledging that America’s workplaces were getting safer, they questioned the accuracy of the data. In October of last year the agency launched an initiative to ferret out an alleged widespread underreporting of workplace safety incidents by employers. However, the agency quietly “paused” the program recently as regional OSHA officials expressed doubts about the program’s effectiveness, saying they were not finding significant violations.

Labor in Focus in the Rocky Mountain State: EFCA will continue to be an issue during the midterm elections. After this week’s primary elections in Colorado the voters will face a decision between two candidates that have different approaches to the card check legislation. There is incumbent Senator Michael Bennet who has not taken a clear position on the jobs-killing bill and Ken Buck, Weld County district attorney, strongly opposes the measure.

Problems with EFCA in the Mountain State: West Virginia Gov. Joe Manchin, the Democratic frontrunner in the U.S. Senate race for the late Sen. Byrd’s seat, has said he has doubts about the card check legislation if it hasn’t made it through a Democratic-controlled administration and Congress. ‘I told labor, “Something is wrong with that piece of legislation if you haven’t been able to get it passed by now,”’ Manchin said.”  Something wrong? The fact that the legislation would cost 600,000 Americans their jobs shows just how wrong it is.

We hope all candidates will realize the devastating economic impact that card check and related proposals will have on our economy and join the NAM in rejecting the misguided legislation.

Sen. Orrin Hatch (R-UT) spoke on a conference call with bloggers today, primarily on the topic of the tax increases that will hit on Jan. 1 unless Congress extends the lower rates enacted in 2001 and 2003. Among other issues that arose were the Employee Free Choice Act, the potential of a lameduck session of Congress, and President Obama’s recess appointment of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services.

Sen. Hatch noted that President Obama made the recess appointment before there had even been a committee hearing on Berwick’s nomination, and then, after the appointment, nominated Berwick again. Hatch obviously saw a similarity with the handling of the nomination and subsequent recess appointment of Craig Becker, an SEIU and AFL-CIO counsel, to the National Labor Relations Board. Sen. Hatch:

They’ve got people on the National Labor Relations Board right now that think they can do though regulation, by the board, that which can’t get through the Senate of the United States of America.

The Senate is not going to give them card check, it’s just that simple. So what are they going to do? They’re going to come up with an approach, or have come up with an approach, that says only those who vote count in the card-check area, or in any other area – in other words, only 51 percent of those who vote, in the whole employment complex.

Now that kind of stuff has never been done before, but they’re doing it.

When they don’t have the ability to do what’s right, they’ll do what’s wrong. And to be honest with you, it’s giving us a lot of fits.

Given the context of the conversation, we took Hatch’s “they” to be the Obama Administration and Senate Democratic allies, supported by Big Labor.

Sen. Hatch is recalling the National Mediation Board’s decision in May to allow a union to be recognized if a simple majority of workers who cast ballots approved. The decision, which applies to workers at airlines and railroads, overturned a 76-year-old rule that governed union elections. The new rules went into effect on July 1, the NMB said in a news release.

The Senator’s comments raised a realistic concern: If one regulatory and quasi-judicial agency with an Obama-appointed majority on its board can make such a radical change in longstanding law, what’s to stop the NLRB from doing the same?

Paul Kersey at the Mackinac Center for Public Policy casts a well-warranted skeptical eye at the National Labor Relations Board’s inquiries about using electronic voting in union recognition elections. From “Federal Labor Board Sets Up Snap Union Elections“:

Years ago new NLRB appointee Craig Becker opined in a law review article that employers should have no right to speak on the topic of unionization, and one way to make that a reality would be to hold elections quickly and away from the workplace. And one way to do that would be through cyberspace. The NLRB has formally requested information from companies on internet voting, potentially a very troubling development depending on what the NLRB has in mind.

In the labor board’s defense, it should be noted that there is one legitimate use for internet voting in labor relations: occasionally a workforce will be widely dispersed, such as a group of installers or travelling salesmen, and it won’t be practical to set up a central voting location. Up to now these workers have been polled on unionization by mail, but voting over the internet might work as well and be cheaper to administer.

With that one exception though, the old-fashioned voting booth is clearly superior to voting by mail or by the web because NLRB officials can verify that votes are cast by eligible workers, in secrecy and without risk of coercion, and counted correctly. With voting by mail or by the internet, there is a real possibility that workers could be forced into voting while under surveillance or even by physical threats. It’s certainly within the realm of possibility that union (or company) operatives will lie in wait for workers, laptop ready, to coerce the desired vote.

The National Association of Manufacturers responded to the NLRB’s request for information in a July 1 letter available here. Excerpt:

Such changes to the election process would be a drastic deviation from current practice and run counter to the principles of fairness and balance inherent in our labor laws. We strongly urge the Board to maintain the integrity of the current NLRB-supervised union representation process and refrain from introducing new technologies that remove the necessary protections currently afforded to employees.

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

• Recess appointed NLRB Board Member Craig Becker is under investigation
  The Washington Examiner’s Mark Hemingway reports that the House Committee on Oversight and Government Reform Ranking Member Darrell Issa, R-Calif., has asked the NLRB’s Inspector General to examine the potential conflict of interest in Becker’s decision to take part in Board decisions involving his previous employers – the AFL-CIO and the SEIU.
• Labor Department report shows that fewer employees are seeking to form a labor union
  The Bureau of Labor Statistics released data that shows that the number of union elections has decreased 60 percent from 1997-2009. This trend follows closely with the decline in overall union membership. Perhaps employees aren’t finding it necessary to have a third party represent them with their employers?
• The Washington Post highlights the flaws of labor leaders plans for higher taxes
  In a follow up piece from a recent lunch with the head of the AFL-CIO, Richard Trumka, the Washington Post’s Ruth Marcus highlights the flawed logic behind labor leaders’ plans to increase taxes on higher-end earners in order to maintain current levels of spending. Her verdict? It won’t work.
• NLRB is finally fully staffed in time to celebrate its 75^th birthday
  Brian Hayes has been sworn in to become the fifth member of the NLRB, bringing the Board to its full complement of five members. Also this week, the Board recognizes the 75th anniversary of our nation’s primary labor statute the National Labor Relations Act. Let’s hope the current Board members maintain the principles of balance that the original drafters sought.
• Labor Board lays out plans to re-hear almost 100 cases
  In response to the Supreme Court ruling that the NLRB had no authority to determine cases without the necessary quorum of members the board laid out plans to re-hear approximately 100 cases that were made in the past few years. The Board’s staffing problems have started when Senate Democrats first sought to block President Bush’s efforts to ensure the Board was properly staffed.
• Former labor official, now White House political director forgot to disclose almost $40k in unused vacation time that was cashed out
  As labor groups continue to press Congress to pass paid leave mandates, it appears such benefits don’t come cheap.

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.

News…

• Wall Street Journal, “Two Confirmed to Labor Relations Board”
• Blog of Legal Times, “Senate Confirms a Herd of Nominees”
• GovExec.com, “Senate moves toward action on nominations”
• Washington Post (blog), “Senate confirms more than 60 Obama nominees”

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

The U.S. Supreme Court today ruled 5-4 that two members of the National Labor Relations Board do not represent a sufficient quorum to decide disputed cases before the NLRB. As the court’s majority opinion concluded in New Process Steel v. NLRB:

[We] find that the Board quorum requirement and the three-member delegation clause should not be read as easily surmounted technical obstacles of little to no import. Our reading of the statute gives effect to those pro-visions without rendering any other provision of the statute superfluous: The delegation clause still operates to allow the Board to act in panels of three, and the group quorum provision still operates to allow any panel to issue a decision by only two members if one member is disqualified. Our construction is also consistent with the Board’s longstanding practice with respect to delegee groups. We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.

We are not insensitive to the Board’s understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress’ decision to require that the Board’s full power be delegated to no fewer than three members,and to provide for a Board quorum of three, must be given practical effect rather than swept aside in the face of admittedly difficult circumstances. Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.

The NLRB operated in 2008 without a full five-member roster after Senate Democrats refused to consider President Bush’s nominations to the board and began holding pro forma sessions to prevent the President from making recess appointments.

The court’s decision means that more than 500 decisions made by the two-member NLRB must be reconsidered. Following President Obama’s two recess appointment, the NLRB now has four members — an unquestioned quorum.

Today’s majority opinion was written by Justice Stevens, joined by Roberts, Scalia, Thomas and Alito. Justice Kennedy wrote the dissent, joined by Ginsburg, Breyer and Sotomayor.

• Reuters, “U.S. court: 2-member labor board can’t decide cases“
• Dow-Jones, “Supreme Court Says NLRB Can’t Act With Only Two Members“

UPDATE (4:45 p.m.): The NLRB issues a news release in response. Chairman Wilma Liebman said:

“When the Board went to two members in January 2008, Member Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated. We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Yes, it always seemed like a good-faith effort to do the board’s work. But now those disputed cases decided by the board but appealed to the courts will be remanded back to the NLRB, which will likely reconsider them with a 4- or 3-member quorum. (The term of sole remaining Republican, Peter Schaumber, expires in August.)

We’ll defer to the unnamed White House official and his keen analysis of Tuesday’s Democratic primary runoff election in Arkansas between Sen. Blanche Lincoln and labor-backed Lt. Gov. Bill Halter. Lincoln defeated Halter, 52-48 percent. From Ben Smith, Politico:

“Organized labor just flushed $10 million of their members’ money down the toilet on a pointless exercise,” the official said. “If even half that total had been well-targeted and applied in key House races across this country, that could have made a real difference in November.”

Pointless? No, not really. By devoting organizing muscle and pouring $10 million into Halter’s failed effort, the unions proved the point that labor leaders consider their own political power more important than their memberships’ concerns. And their political power is more pissant than puissant.

The anti-democratic Employee Free Choice Act was a big factor in Tuesday’s primary in Arkansas. Labor turned decisively in April 2009 against Sen. Lincoln when, after months of ambiguity, she said she would vote against the Employee Free Choice Act.  Arkansas is a right-to-work state, and depriving employees of the secret ballot in union-representation elections and forcing contract terms onto employers — the heart of the Employee Free Choice Act — is anathema to voters.

Even Halter recognized that card check was bad electoral news. He hemmed and hawed on his backing for the measure, stuck between his need for union cash and voter support.

Lessons learned:

The Employee Free Choice Act is an election loser, which means it will not pass in the second session of the 111th Congress as stand-alone bill. So labor will look to add pieces of EFCA to other legislation, probably adding the word “jobs” to the measure.

The National Labor Relations Board is where the action is. Big Labor maligned Lincoln for opposing cloture on the nomination of SEIU and AFL-CIO counsel Craig Becker to the NLRB. It was a good vote. A recess appointment, Becker is already showing the signs of the pro-labor activism his critics warned of. It may come after the election — certainly after the last Republican appointee, Peter Schaumber steps down in August — but expect NLRB rule-making designed to achieve some of labor’s goals.

Big Labor can promise a candidate support, even deliver on that support, and yet not determine the elections. Voters dislike the bluster and threats of political force — in campaigns, and in the workplace.

Peter A. List of LaborUnionReport.com reminds us of Craig Becker’s ethics pledge, signed in conjunction with his recess appointment to the National Labor Relations Board. The pledge includes this affirmation:

I will not for a period of two years from the date of my appointment participate in any particular matter involving specific parties that is directly and substantially related to my former employer or former clients, including regulations and contracts.

Becker served as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations.

So explain this:

St. Barnabas Hospital and Committee of Interns and Residents, Local 1957, SEIU, Petitioner. Case 2–RC–23356

June 3, 2010

ORDER DENYING REVIEW

BY CHAIRMAN LIEBMAN AND MEMBERS SCHAUMBER AND BECKER [our emphasis]
The National Labor Relations Board, by a three member panel, has carefully considered the Employer’s request for review of the Regional Director’s Decision and Direction of Election. The Regional Director directed an election among the Employer’s house staff. The Employer asserts, among other reasons, that the Regional Director should have considered the applicability of Brown University, 342 NLRB 483 (2004). We deny review.

We can guess the lawyerly defense: Oh no, I just recused myself from considering cases that involved SEIU International, not any of the locals. It’s a distinction without a difference: Local 1957, the Committee of Interns and Residents, affiliated with SEIU in 1997.

Indeed, Becker has already set the stage for the explanation. As the NAM’s Keith Smith wrote in a March 29 post about Becker’s confirmation hearing:

In his response to Senators’ questions, Becker committed to recusing himself for one year from any matters including either union internationals – the AFL-CIO or SEIU. This limited recusal is highly suspect. Most Board actions don’t normally involve internationals, but usually address conflicts between a local labor union and an employer. While Mr. Becker pledges not to be involved in the decisions of major labor organizations, he has not expressed a willingness to recuse himself of any decisions affecting labor local – and it’s entirely possible to make major changes in applying labor law through these decisions. This issue was noted by the letter sent from all 41 Republican Senators last week.

Well, if you’re going to blow through your ethics pledge, might as well be audacious about it. But Becker shouldn’t expect to be confirmed by the Senate via unanimous consent for a full term on the board.

Becker’s answers to three questions about recusal from SEIU cases are in the extended entry below:

13. Will you recuse yourself from all objections and SEIU complaints,
filed by or against the SEIU, while you are a Board Member?
Answer: I have entered into an ethics agreement with the NLRB which has been
approved by the Office of Government Ethics. I intend to fully comply with that
agreement, which provides as follows. Upon confirmation, I will resign from the
position of Associate General Counsel for the SEIU. Pursuant to 5 CFR 2635.502,
for a period of one year after my resignation, I will not participate personally and
substantially in any particular matter involving specific parties in which the SEIU
is a party or represents a party, unless I am first authorized to participate, pursuant
to 5 CFR 2635.502(d). In addition, I am vested in the Pension Plan for Employees
of the Service Employees International Union. This is a defined benefit plan and,
upon eligibility, I will receive monthly retirement benefits. Because I will
continue to participate in this entity’s defined benefit plan, I will not participate
personally and substantially in any particular matter that will have a direct and
predictable effect on the ability or willingness of SEIU to provide me with this
contractual benefit, unless I first obtain a written waiver under 18 USC 208(b)(1),
or qualify for a regulatory exemption under 18 USC 208(b)(2). Finally, I
understand that as an appointee I am required to sign the Ethics Pledge (Executive
Order No. 13490) and that I will be bound by the requirements and restrictions
therein in addition to the requirements cited above.
14. What standards of recusal will you apply?
Answer: I will use the standards of recusal applicable to executive branch officials
set forth in 5 CFR 2635 and in Executive Order No. 13490, considering any
other arguments for recusal raised in a particular matter based on the
relevant facts and applicable law and, where prudent, in consultation with
the agency ethics officer.
15. Certainly, at the least, you will agree to recuse yourself from any SEIU
cases which arose while you were its Associate General Counsel?
Answer: Please see my answer to question 13. In addition, I will not participate
personally and substantially in any particular matter involving specific parties that
arose while I was counsel to SEIU and in which the SEIU is a party, unless I am
first authorized to participate, pursuant to 5 CFR 2635.502(d)

The general counsel of the National Labor Relations Board (NLRB), Ronald Meisburg, has announced that he is leaving the Board on June 20 to join the law firm Proskauer Rose LLP. Meisburg’s term officially ends on August 14th. When Meisburg departs it will allow the President to nominate an individual to the post that has been filled by Republicans since 2001. It is expected that the deputy general counsel will assume the responsibilities of the general counsel spot until a replacement is confirmed. However, the President has the ability to appoint an interim general counsel during a Congressional recess – as he did with NLRB members Craig Becker and Mark Pearce.

The NLRB’s general counsel is an important position as it is separate from the board and effectively serves as the NLRB’s executive director — responsible for bringing cases before the Board, prosecuting unfair labor practices and maintaining the NLRB’s field offices.

Meisburg’s departure could produce even further process and policy changes at the board. With a 3-1 majority of labor union-side attorneys, plus a new general counsel, an activist NLRB could seek to engage in the rare exercise of formal NLRB rulemaking. Labor leader have pushed for rulemaking to promote the union agenda, including the provisions of the Employee Free Choice Act.

We’re not alone in our concerns with the intent of the current Board. In touting the a new addition to their firm Paul Salvatore, with Proskauer’s Labor & Employment Law Department said that the firm expects “the Obama NLRB to play an activist role, making Ron’s addition invaluable in our ability to serve clients.”

As the Senate was preparing to adjourn for the Memorial Day recess period, Sen. Tom Harkin (D-IA) sought to bring a package of nominees before the Senate to be passed by unanimous consent. This often takes place when there is a backlog of military nominations and other non-controversial nominees.

But this time was different.

Harkin, who chairs the Senate HELP Committee with jurisdiction over labor nominees, attempted once again to seat Craig Becker to the powerful National Labor Relations Board (NLRB) by including Mr. Becker in this package. Senate had previously reacted to Mr. Becker’s views that are well outside the mainstream of legal thought with a bipartisan vote to oppose moving his nomination forward. Craig Becker’s extensive academic writings manifest radical points of view that go counter to decades of established labor law and indicate his willingness to use the NLRB to implement the goals of labor’s highest priority – the Employee Free Choice Act.

President Obama then made a recess appointment of Becker and another Democratic nominee, Buffalo labor lawyer Mark Pearce, to the NLRB over the Easter recess.

Senate Republican Leader Mitch McConnell blocked Sen. Harkin’s recent attempt at Becker’s confirmation by opposing the “unanimous consent” request, citing Becker’s views as well as the process to seat him – the recess appointment that circumvented the Senate’s will.

As we’ve reported previously the President appointed Mr. Becker to the Board during the Easter recess – after the Senate rejected moving forward with the nomination. James Fallows with The Atlantic notes that Sen. Harkin’s attempts to include Becker nomination further holds up a host of other nominees that are pending confirmation.

Labor leaders and their allies are dead set on implementing the Employee Free Choice Act at all costs – even if that means doing so incrementally through the Board and other Federal agencies. Sen. Harkin’s latest move is further evidence that employers and employees who object to the anti-democratic legislation must continue to be on guard for other attempts to enact aspects of the jobs-killing legislation.