Craig Becker Archives - Shopfloor

Pressure Mounts Over ‘Preposterous’ NLRB Complaint Against Boeing

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

McClatchy Newspapers reports on the Republican presidential debate in Greenville, S.C., “South Carolina’s Haley leaves mark on GOP presidential debate“:

With so few candidates at the debate, [Gov. Nikki]  Haley played a supporting role as the Fox News moderators took up her challenge to presidential candidates to weigh in on a National Labor Relations Board complaint against Boeing Charleston’s plant.

Pawlenty jumped first, claiming President Barack Obama’s administration crossed a new line in opposing Boeing’s decision to locate outside of its home base of Washington. “It’s a preposterous decision,” he said.

Minnesota Public Radio, “Pawlenty scores some points in first GOP debate“:

On the domestic front, Pawlenty drew wild applause from the audience when he stood with South Carolinians over a local labor issue involving Boeing aircraft jobs.

“You have this administration, through the National Labor Relations Board, telling a private company that they cannot relocate to South Carolina and provide jobs in this state. And they are good-paying jobs, and they’re needed jobs. It’s a preposterous decision and position of this administration.”

It’s not just a local labor issue. It’s a national issue of tremendous importance to businesses across the nation, who are deeply concerned about a National Labor Relations Board that arrogates to itself the power to determine where a company can locate new production facilities.

And although the Republicans have seized on the issue while Democrats, tied to organized labor, have remained mostly silent, this is also not inherently a partisan issue. The idea that a government agency can reinterpret precedent and ignore the facts of a case to shut down a billion-dollar operation employing more than 1,000 people should alarm those of all political affiliations who believe in private-sector growth.

The NLRB’s account of the facts of the case is suspect. Chairman John Kline (R-MN) and Rep. Phil Roe (R-TN) of the House Education and Workforce Committee has sent a letter (available here) to Lafe Solomon, the NLRB’s acting general counsel who brought the complaint against Boeing.

The complaint references alleged statements made by Boeing officials between October 2009 and March 2010 that work stoppages were one reason for choosing the new location.

When asked about the charge in June 2010, the NLRB regional director Richard Ahearn told The Seattle Times “it would have been an easier case for the union to argue if Boeing had moved existing work from Everett, rather than placing new work in Charleston.” He was also unable to point to any “bright line” rule to determine whether the company’s actions violated the law. Finally, the regional director stated “an initial ruling is weeks away.”

The letter requests NLRB documents underlying the decision. Bloomberg reports, “Republicans Rally Behind Boeing Over Labor Board Complaint.”

On the Senate side, Sen. Jim DeMint (R-SC) and 18 other Senate Republicans have written President Obama calling on him to withdraw the nomination of Solomon — the NLRB’s general counsel job requires Senate confirmation — and NLRB member Craig Becker, the former SEIU lawyer who serves on the board via a recess appointment. From FoxNews.com, “Senate Republicans Threaten to Fight NLRB Nominations Over Boeing Complaint“: Read More

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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Arguments Pro and Con on NLRB’s Plan to Allow ‘Micro Unions’

By | Briefly Legal, Labor Unions | 2 Comments

The National Labor Relations Board has posted the amicus briefs submitted in response to the NLRB’s review of a case that the board could use to justify a radical change in labor policy, the authorization of “micro unions.” (See our posts immediately below here and here.)

The case is Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9. The National Association of Manufacturers is a member of the Coalition for a Democratic Workplace, which submitted its amicus brief in alliance with the HR Policy Association.

To simplify the sides, employers and employer groups believe the NLRB is going too far in turning one specific labor dispute into a broader review of what legitimately constitutes a bargaining unit. Labor unions want a million units to bloom, allowing organizers to pick and choose small groups of employees whom they can more efficiently persuade and pressure into joining a union.

The employer’s brief: Specialty Healthcare and Rehabilitation Center of Mobile

The union’s brief: United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO/CLC, i.e., USW

Amicus briefs from labor unions:

Amicus briefs from employer groups:

Submitting a letter were three Republican members of the Senate Heath, Education, Labor and Pensions Comittee: Senators Mike Enzi, Orrin Hatch, Johnny Isakson Read More

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

NLRB Plan Would Revive Big Labor Through ‘Micro Unions’

By | Briefly Legal, General, Labor Unions | 2 Comments

The National Labor Relations Board is opening the door to a new and radical reinterpretation of labor law, allowing the formation of “micro unions” that could force employers to deal with multiple bargaining units at a single workplace. If the scheme is pushed through, labor organizers could approach small groups of employees to form unions, even though the majority of workers at a job site would oppose unionization. The multiplying of bargaining units at a single business location would create enormous management problems and grant a few employees the ability to disrupt business operations through a labor action. Big Labor loves the idea.

The case, Specialty Healthcare and Rehabilitation Center of Mobile and United Steelworkers, District 9, involves the attempt of the Steelworkers to organize a group of certified nursing assistants at a nursing home. The employer, Specialty Healthcare, maintained that the only appropriate unit consists of all nonprofessional service and maintenance employees.

The NLRB’s Regional Director sided with the Steelworkers, finding the smaller bargaining unit acceptable, and Specialty Healthcare appealed. Rather than rule on its own, the NLRB sent out a request for amicus briefs to comment on what constitutes an appropriate bargaining unit. This unusual step strongly suggests to us that the board’s three-member Democratic majority wants to use the case to overturn precedent and allow creation of these small “micro unions.”

Not surprisingly, the apparent intellectual instigator of this exercise is Craig Becker, the radical labor theoretician and former SEIU and AFL-CIO counsel. (Becker serves on the board as a recess appointment, having failed to win Senate confirmation.) In another NLRB case, Wheeling Island Gaming, Becker argued for letting a casino’s poker dealers form their own bargaining unit, supposedly because they had separate and distinct interests from blackjack dealers and craps and roulette operators. Even his fellow Democratic board members, Chairman Wilma Liebman and former labor lawyer Mark Pearce, thought he went too far. Correction (3:20 p.m.): Chairman Wilma Liebman, a fellow Democrat, and former Republican appointee William Schaumber, disagreed. The NLRB order is here.

The Coalition for a Democratic Workplace (CDW), to which the National Association of Manufacturers, and the HR Policy Association have filed an amicus brief (download here) raising strong objections to any attempt by the NLRB to overturn longstanding precedent. From the CDW’s news release, “Activist NLRB To Hear Case On Special(ty) Interests“:

At issue in Specialty Healthcare is whether Big Labor may organize by cherry picking groups of workers that support the union without providing many co-workers who may oppose the union an opportunity to vote. Such a ruling would reverse over 50 years of standards for bargaining units. Read More

Renomination: Craig Becker Gets Another 11 Months on the NLRB

By | Labor Unions, Regulations | No Comments

President Obama on Wednesday renominated Craig Becker, the former SEIU and AFL-CIO counsel and Big Labor expansionist, to the National Labor Relations Board. Labor leaders have been miffed — or expressed their miffedness as a political feint — over the President’s comments about the burden of regulations and his overtures to employers. Still, we doubt Becker’s reappointment is an overt gesture meant to appease labor. Becker’s name was on a long list on renominations; any President sticks by his appointments or risks looking weak.

The President originally nominated Becker to the NLRB on July 9, 2009, and after the Senate returned the nomination to the White House at the end of 2009, made the recess appointment in April 2010 (and subsequently renominated him). This latest renomination is required to keep Becker’s recess appointment in effect through the end of 2011.

Becker is known for his radical writings that argue employers should have no voice when unions attempt to organize a workplace, as well as his view that aspects of the anti-democratic Employee Free Choice Act can be implemented through rules, without approval by Congressional policymakers. On the NLRB, there have been occasions when Becker should have recused himself from decisions because of a clear conflict of interest, but he went ahead and supplied his pro-union vote anyway.

Becker’s appointment created an NLRB majority that views business first as offenders rather than employers, undermining the Administration’s claims to be promoting job creation. Senate Republicans blocked his confirmation before, and we see no indications Becker’s nomination has somehow become more politically palatable. Nor should it. Becker is a pro-labor activist serving on what should be a balanced quasi-judicial panel.

The recess appointment expires Dec. 31, 2011. Good.

Recent coverage …

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.

President Reaffirms ‘Plan B’ on Card Check

By | Human Resources, Labor Unions | 2 Comments

President Obama met with a family in Fairfax, Va., this afternoon to help sell his economic message, and in a follow-up discussion, he was asked a question about the long-pending Employee Free Choice Act, i.e., “card check.” His response reprised remarks in August when he told the AFL-CIO’s Executive Council that, while his administration will keep “fighting” to pass the bill in the Senate, he has already begun effecting the legislation’s goals through executive agencies and rulemaking, including action by the National Labor Relations Board.

The President’s remarks today again confirm what we’ve forecast for quite some time now: Passing the card check bill has become so difficult that so union leaders and their allies now plan to achieve their goals through executive branch actions. If Congress has to be replaced at the policymaking branch of government, so be it.

We’ll post the transcript of his remarks when it becomes available.

UPDATE: (9/14/10 1:40pm)

The White House has released the transcript of the President’s remarks, which are available here. Here is an excerpt from his response to the question on the status of the Employee Free Choice Act (emphasis ours):

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 Wall Street Journal recognizes in an editorial today that by failing to enact card check through Congress, labor leaders and their allies that include NLRB Board Member Craig Becker, are seeking to use executive branch resources to give labor leaders the type of labor law changes they seek. Click here  for the editorial and see below for an excerpt:

As Big Labor has realized it won’t get “card check” legislation through Congress, it is turning to its secret weapon inside the Obama Administration—labor lawyer Craig Becker. And as many Senators feared when he was nominated, Mr. Becker is using his position on the National Labor Relations Board to bypass the will of Congress.

President Obama gave Mr. Becker a recess appointment in March after Senate Democrats refused to confirm him to the NLRB, the agency charged with fairly overseeing union elections. As a top lawyer for the Service Employees International Union, Mr. Becker had suggested that the NLRB has the legal authority to impose card check—which eliminates secret ballots in union elections—without the approval of Congress. And lo, at the end of August the NLRB dropped the bombshell, when, in a 3-2 decision, it decided to revisit its important 2007 Dana Corp. ruling.

Labor Policy Round-Up

By | Human Resources, Labor Unions | One Comment

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.

Card Check: Sen. Hatch Warns that NLRB Has Plans

By | Judicial Nominations, Taxation | 2 Comments

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?