As noted at Shopfloor yesterday, many labor groups are pressuring President Obama to seat Craig Becker to the National Labor Relations Board (NLRB) via a recess appointment, despite objections from the Senate. Some have questioned the validity of the Board’s current quorum and have argued that with only two members the Board is crippled. However, if the Senate truly feels that the Board needs an unquestionable quorum to be successful, Sen. Mike Enzi (R-WY), who serves at the Ranking Member on the Senate HELP Committee, lays out an easier option: Confirm the two pending nominees.

From a Feb. 9 floor statement:

I wish to point out that there is another way. There at three current vacancies at the National Labor Relations Board, and the HELP Committee has unanimously approved the President’s other two nominees. If the Senate wanted to confirm two new members to the Board, it could have easily done so today. [February 9, 2010] In fact, it could have done so last year. One of these nominees, Mark Pearce [a Democrat], is a labor-side attorney who has spent his career representing labor unions. The other is a Republican nominee with management-side experience in addition to tenures on the staff of the National Labor Relations Board and in the Senate as my labor policy director, Brian Hayes. Yet these nominees did not inspire objections from HELP members on either side of the aisle.

It is disingenuous to suggest that the only way that the Board can function properly is through the controversial action of a recess appointment. If the Senate wants to ensure the effective operation of the NLRB, Senator should move to confirm the other two nominees now awaiting confirmation.

Sen. Orrin Hatch held a conference call with bloggers at noon today to talk about health care legislation and offer his critique of the possibility of Senate Democrats using reconciliation to push through a bill despite the public’s overwhelming opposition. (See the Senator’s Washington Post op-ed, “Reconciliation on health care would be an assault to the democratic process.”)

We took the opportunity to ask for the Senator’s thoughts on the possibility of President Obama making a recess appointment of Craig Becker to the National Labor Relations Board. On Feb. 9th, the Senate failed to invoke cloture on Becker’s nomination by a bipartisan vote of 52-33.

Sen. Hatch:

When you have a clear cut vote like that, the President shouldn’t do it, should not recess appoint him. If he does …

The man is off the wall. He’s very smart, I mean, I don’t mean to demean him. He’s a smart man. In fact that’s one of the problems. He will do any thing to help the SEIU and the AFL-CIO. Anything!

And that includes doing by regulation at the NLRB that which you could never get through legislation, and once they do that, I think it would be not only unconstitutional, but, you know, illegal, but it would take years all the way through the Supreme Court to change it. And that’s what they’re up to.

I can’t believe the president would put Becker up there, knowing how very …That was even a bipartisan vote against Becker, by the way, and I’d be very surprised if he did that.

Now, I don’t dislike the man personally. I dislike his views. He’s a smart guy, there’s no question about it. But he is an ideologue, there’s no question about that. He’s going to do whatever those big unions want. And, you know, they want power, more than anything else, and that’s what they’re going to give him if he’s recess appointed.

The audio is here.

The National Labor Relations Board’s Office of Public Affairs issued a news release Wednesday announcing that the NLRB was seeking a court order to force a Buffalo, N.Y., egg processing company to rehire union supporters it had fired. The release is more evidence of an NLRB under Chairman Wilma Liebman that is abandoning its official role as a disinterested, quasi-judicial agency to involve itself in politics. It’s a disturbing trend.

There are 10 news releases listed on the 2010 news release page of the NLRB. Of the five releases that deal with disputes between organized labor and employers, four report on actions the board took against the employer. The other announces a union withdrawing its request for an election. (See list in extended entry.)

We’d previously noted two other releases, one highlighting a speech in which Liebman expressed views on labor policy and the other putting her support behind the pending nominations to the NLRB. (See post, “Politicizing the NLRB.”)

Even if the statements are intended to be neutral, the selection of topics of a news releases — in this case, decisions against businesses — imply a bias that a quasi-judicial board should assiduously seek to avoid.

Liebman’s current role is appropriately akin to that of an appellate judge, the chief judge of a court that hears appeals. We do not recall appellate judges sending out news releases saying, “The court today found that the defendant was guilty and took tough action to punish him.” Nor do appellate judges issue releases saying, “The President has nominated qualified candidates to the court, and I fully support these nominations.” Judges also avoid lobbying on policy issues, as well.

President Obama’s nomination of SEIU attorney Craig Becker to the NLRB has sparked protest from employer groups because Becker’s writings suggest he views the board as vehicle to enact pro-labor policies. Business fears a board that issues ruling based on politics, not on facts and the law.

While all the attention is directed toward the Becker nomination, we wonder whether that politicizing is already under way.

Just as Easter is about resurrection, we will resurrect a labor board that fights for workers. That will lead to renewal of workers rights.

That’s Larry Cohen, president of the Communications Workers of America, quoted in a Wall Street Journal post about a recess appointment of Craig Becker to the National Labor Relations Board, “Labor Officials Confident Union Lawyer Will Take NLRB Seat.”

The hyperbole captures Big Labor’s delight over signals from Vice President Biden and Labor Secretary Solis that President Obama will make a recess appointment of Becker during the Passover/Easter recess of Congress in April.

Take note of Wednesday, March 3, 2010. That’s the day the Obama Administration embraced both reconciliation and recess appointments to accomplish its goals, a concession to its political limits.

Earlier posts on Becker.

It appears unlikely, but not impossible, that the Senate will enact a version of the Employee Free Choice Act this year. Whatever the legislation’s fate, recent news reports make it clear that a candidate’s position on the anti-democratic card check legislation will be a major campaign issue, not just in the fall election but also in Democratic primaries. For example:

• Denver Business Journal, “No consensus on ‘card check’ in meeting between Bennet, Colorado business leaders“: “A group of Colorado Association of Commerce & Industry leaders and U.S. Sen. Michael Bennet could not find common ground Tuesday on the “Employee Free Choice Act,” the so-called “card check” bill to make it easier to form union locals, but both sides still called the Washington meeting productive.”
• The Hill, “Halter calls for ‘compromise’ on card check“: “As unions pledged millions to help his primary challenge [against Sen. Blanche Lincoln], Arkansas Lt. Gov. Bill Halter (D) offered a muddled endorsement of a key labor bill. When asked about the Employee Free Choice Act (EFCA) during an interview on MSNBC Tuesday, Halter declined to address the most controversial provision – known as “card check” — instead saying he supports a compromise.”
• New York Times, “Still With Obama, but Worried“: “Mr. Trumka [of the AFL-CIO] said that unions would not campaign for Democrats who had done little for labor, especially on issues like the card-check bill. Even though Mr. Brown’s victory denied the Democrats the 60 votes needed to overcome a filibuster, Mr. Trumka voiced confidence that Mr. Obama and the Democrats would find a way to enact that bill, the Employee Free Choice Act.”
• The Examiner, Mark Tapscott, “Business leaders swarm hill to fight card check“: “Executives and owners representing thousands of small and medium-size businesses from eight states flooded Capitol Hill yesterday with one message for their senators — don’t even think about trying to revive the supposedly dead Employee Free Choice Act. An estimated 250 of the lobbyists-for-a-day represented state-level chambers of commerce from Arkansas, Colorado, Delaware, Indiana, Louisiana, North Carolina, Pennsylvania and Virginia.” The fly-in is organized by the U.S. Chamber;the state chambers in Arkansas, Delaware and North Carolina are also members of National Association of Manufacturers’ State Associations Group.
• Wall Street Journal Washington Wire blog, “AFL-CIO Readies ‘Firewall’ Strategy for Fall Elections,” also noting Big Labor’s pressure on the White House for a recess appointment of SEIU attorney Craig Becker to the National Labor Relations Board.

UPDATE (10:55 a.m.): Also, Sioux Falls Argus Leader, “Thune warns against efforts to make it easier to create labor unions”

The White House streamed the audio of Vice President Biden’s remarks Monday to the AFL-CIO’s Executive Council in Orlando, but we find no archived version or transcript. The AFL-CIO’s blog, usually eager to tout this sort of thing, offered just a brief report on the Veep’s most controversial pronouncements, “Biden to Executive Council: We Need A Middle Class.” Yikes!

Of the part of his remarks we heard, this was the relevant passage on the top issues of the day (from The Wall Street Journal):

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.

So, not much substance, nothing new. He spoke in vague terms about getting a Senate Republican to support the Employee Free Choice Act but moved on quickly to different topics.

Advocates for the recess appointment of SEIU attorney Craig Becker to the National Labor Relations Board must have been disappointed. The Vice President offered nothing along the lines of, “We need this man.”

In introducing Vice President Biden, the AFL-CIO’s Richard Trumka hailed the release of the White House’s Middle Class Task Force’s first report last week. Makes sense: Its content tracks closely with the political and policy lines of Big Labor, moreso than any other single document we’ve seen come from the White House.

• New York Times (blog), “Biden to Labor Leaders: Things Could Be Worse“
• The Associated Press, “Biden says he understands resentment over bailouts“

This week’s meeting of the AFL-CIO’s executive council in Orlando elicits journalistic reports on how Big, Used-to-be-Bigger Labor will respond to its political failures.

Associated Press, “Organized labor’s agenda hits roadblock; what now?”

Prospects for a health overhaul have faded. Even slimmer are the chances of achieving labor’s chief goal, passage of a bill making it easier for unions to organize workers. A bipartisan jobs bill passed this week by the Senate drew tepid praise from the AFL-CIO president, Richard Trumka, who called it a “Band-Aid on an amputated limb” - far short of what unions wanted.

This wasn’t what unions expected a year ago after spending more than $400 million to help elect Obama and increase the size of Democratic majorities in the Senate and House.

Bloomberg, “Unions Regroup After Stunned by Losses Under Obama, Democrats“:

March 1 (Bloomberg) — William George, president of the Pennsylvania AFL-CIO, blames the card-check bill. Alan Hughes, AFL-CIO chief in Arkansas, blames Wal-Mart. Charlie Flemming, a union leader in Atlanta, blames Democratic politicians.

As they meet in Orlando, Florida, this week to plan their 2010 political campaign, union leaders are reeling from a succession of defeats they never expected after helping President Barack Obama and the Democrats win elections in 2008.

What now? Well, the strategy hasn’t really changed despite the setbacks: Rely on government spending and legislation to rescue them. Last week, AFL-CIO activists rallied in Orlando:

Contending that government investment swiftly saves jobs and stimulates the economy, union leaders rallied on the steps of Orlando City Hall to urge support for a new federal jobs bill, one that would push money more quickly to state and local government workers.

Paul Wilson, president of the Central Florida AFL-CIO union, and organizers with the AFSCME public service workers union urged Congress to invest in jobs in public service, especially since Florida’s state government is facing as much as a $3 billion budget shortfall.

Vice President Joe Biden speaks to the AFL-CIO leadership this afternoon at Disney World. We’ll be looking for the promises of a government rescue for labor, comments on the nomination of Craig Becker to the National Labor Relations Board, a renewed vow of support for the Employee Free Choice Act, and any reference to “black shirts.”

So argues Katie Packer, executive director of the Workforce Fairness Institute, in an op-ed in today’s Washington Times, “True intentions exposed,” revealing the not-so-secret agenda of Andy Stern of the SEIU and the AFL-CIO’s Richard Trumka in pushing the nomination of Craig Becker to the National Labor Relations Board. The Senate last week failed to invoke cloture on Becker’s nomination by a bipartisan, 52-33 vote.

Just days ago, Mr. Trumka wrote, “The NLRB’s job is to protect workers’ rights - but for more than two years it has been functioning with only two members instead of the five it should have. Working people need an NLRB that can enforce the National Labor Relations Act - not one hobbled by vacancies. … These next few weeks will be crucial in building support for a fully functional NLRB.”

So, the Workforce Fairness Institute (WFI) took Mr. Trumka at his word and called on the U.S. Senate to move expeditiously on the other outstanding nominations to the NLRB, namely Democrat Mark Pearce and Republican Brian Hayes. This would give the NLRB the quorum it needs to do its job.

In related dissections of Big Labor’s rhetoric,  LaborPains.org reads a recent opinion column in Politico by William Forbath, professor of law and history at the University of Texas and author of Law and the Shaping of the American Labor Movement. What’s Forbath’s real goal in supporting the nomination of Becker to the NLRB?

From Politico:

“The Becker nomination offers President Barack Obama a more important opportunity, what he likes to call a teachable moment. […]

But unions are on the verge of vanishing. If the Democrats won’t even go this far to halt the battering unions have been taking, then Democrats and the nation will be the losers. For soon, we won’t have any institutional player to do the heavy lifting, to provide the serious money the Democrats need to campaign for job creation, health care reform and financial regulation. McCain and company have demonized Becker simply because he’s a union lawyer. Obama should stand up to them.

Save Big Labor and your party allies, Mr. President! Make a recess appointment of Craig Becker!

Thanks to the Center for Union Facts for slogging through Forbath’s column. We lost interest with his tired invocation of “the big lie” and “teachable moments.” Is that what passes for argument at the University of Texas?

Finally, we draw your attention to yesterday’s post here at Shopfloor.org on the political PR campaign by the current chairman, Wilma Liebman, undermining the board’s quasi-judicial responsibilities. As the Truth About EFCA blog headlined its own post, “Even Without Becker, Politicizing The NLRB.”

Washington Post columnist Al Kamen catches up with week-old news today in his “In the Loop” column, “After failed labor board nomination, unions not too happy with Obama.” It’s the usual melange of snark and inaccuracy applied to the Senate’s Feb. 9 cloture vote that blocked the nomination of Craig Becker to the National Labor Relations Board.

First, Kamen writes, “[Senate] Democrats weren’t able to muster the 60 votes needed to get a vote on the nomination of labor lawyer Craig Becker to be chairman of the National Labor Relations Board.” Except Becker wasn’t nominated to be chairman. More Kamen:

Democratic Sens. Blanche Lincoln (Ark.) and Ben Nelson (Neb.) also opposed the nomination, apparently after having discovered that Becker, associate general counsel to the Service Employees International Union, was actually a pro-union lawyer. Truly shocking. Who knew?

Yeah, yeah. Here’s the actual reason Sen. Lincoln voted against cloture, which failed 52-33. In her own words:

I believe there should be a balance between the rights of employers and employees in the workplace regarding labor laws and regulations that govern collective bargaining. After reviewing Mr. Becker’s record, I became concerned that his approach to these important issues could undermine the existing rules on union elections on matters that in my view should be addressed through the regular legislative process.

Kamen then repeats organized labor’s line:

The labor folks take Obama’s statement to mean that there’ll be no recess appointment this round — meaning nothing at least until the next Senate recess, in late March — and thus the five-member NLRB, unable to function for more than a year with only two members, will continue to be crippled.

It would surely be better to have a five-member NLRB than the current two-member board, but “crippled” belies the reality that the two-member board has made hundreds of decisions. Several appellate courts have upheld the validity of that quorum, while one — the D.C. Circuit — ruled that a two-member board could not make valid rulings. The U.S. Supreme Court is considering the issue. (Jackson-Lewis summary)

In any case, Becker’s confirmation is not required to remove any dispute over a functioning quorum at the NLRB. Two nominees remain pending: Buffalo labor lawyer Mark Pearce, a Democrat, and Brian Hayes, a Republican Senate staffer. If the Senate is intent on healing the supposedly crippled NLRB, it need only confirm Pearce and Hayes.

Other posts on Becker nomination.

Even as organized labor was pressuring the Obama Administration to make a recess appointment of Craig Becker to the National Labor Relations Board, White House officials were drafting a statement making it clear President Obama would NOT appoint Becker during the Presidents’ Day recess next week.

Statement by the President on Senate Confirmations, released Thursday evening:

Today, the United States Senate confirmed 27 of my high-level nominees, many of whom had been awaiting a vote for months. 

At the beginning of the week, a staggering 63 nominees had been stalled in the Senate because one or more senators placed a hold on their nomination.  In most cases, these holds have had nothing to do with the nominee’s qualifications or even political views, and these nominees have already received broad, bipartisan support in the committee process.

Instead, many holds were motivated by a desire to leverage projects for a Senator’s state or simply to frustrate progress.  It is precisely these kinds of tactics that enrage the American people. 

And so on Tuesday, I told Senator McConnell that if Republican senators did not release these holds, I would exercise my authority to fill critically-needed positions in the federal government temporarily through the use of recess appointments.  This is a rare but not unprecedented step that many other presidents have taken.  Since that meeting, I am gratified that Republican senators have responded by releasing many of these holds and allowing 29 nominees to receive a vote in the Senate. 

While this is a good first step, there are still dozens of nominees on hold who deserve a similar vote, and I will be looking for action from the Senate when it returns from recess.  If they do not act, I reserve the right to use my recess appointment authority in the future.

The list of nominees confirmed by the Senate Thursday is here.

White House spokesman Robert Gibbs was asked about a recess appointment for Becker during the media briefing Thursday but said only the President had not discussed individual appointments in his meeting with Congressional leadership.