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“:

A group of Senate Republicans fired off a letter to President Obama Thursday, threatening to “vigorously oppose” a couple of key nominations to the National Labor Relations Board (NLRB) after it issued a complaint that they see as an assault on right-to-work states.

The letter is the latest turn in the battle between the Obama administration and lawmakers from non-union states.

We have yet to see a comment from the White House, Rep. James Clyburn (D-SC), or the two Democratic Senators from Washington, Maria Cantwell and Patty Murray, but the Senators’ letter finally elicits a comment from a Washington Democrats, albeit via a spokesman. From “Feud over nonunion Boeing plant crosses state, party lines“:

Rep. Norm Dicks, a Washington state Democrat and longtime Boeing ally, said the Republicans should hold their fire and await the outcome of an administrative law judge’s hearing on the dispute next month in Seattle.Dicks, who was instrumental in steering a long-disputed $35 billion contract for Air Force refueling tankers to Boeing – and which eventually could be worth more than $100 billion – accused his GOP colleagues of political meddling.

“The attempt by this group of Republican (lawmakers) to muzzle the agency responsible for enforcing the National Labor Relations Act before the matter can be reviewed in a public proceeding is inappropriate and premature,” said Dicks spokesman George Behan.

With respect, the NLRB’s decision was so extreme and the implications for the company, South Carolina workers, and the U.S. economy are so great, that silence would be irresponsible.

Mr. President?

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.)

President Obama has also nominated the NLRB’s acting general counsel, Lafe Solomon, to serve a full four-year term as general counsel. (The nomination was announced Jan. 5, 2011.) Solomon, who joined the agency’s staff in 1972, was the NLRB official who actually brought the complaint against Boeing. His name is on the bottom line of the document that, if implemented, would prevent companies from locating business operations where it makes best business sense — a radical expansion of government and union control over the private sector.

No Senate confirmation hearings have been scheduled for Becker, Solomon or President Obama’s nominee to fill a Republican vacancy on the board, Terence F. Flynn, current counsel to NLRB Member Brian Hayes (a Republican).

Standard operating, political procedure in the Senate would be to delay these confirmation hearings as long as possible. But in light of the board’s recent radical decisions, it might be better to schedule the Senate HELP Committee hearings as soon as possible to air out the NLRB’s political, pro-union agenda.

As for the House, we anticipate a renewed push by Republicans to defund the agency. The effort led by Rep. Tom Price (R-GA) was stopped during the February budget debate by a vote of 176-250. But the NLRB’s move against Boeing and the private sector will certainly revive House sentiment against the board.

UPDATE (1 p.m.): It seems possible that Becker and Liebman could both stay on the board via recess appointments. As one close follower of the NLRB informs us, with expiring terms and vacancies, all sorts of political mischief is possible via presidential recess appointments. The terms and vacancies:

• Chairman Liebman’s term ends Aug. 27, 2011 (Democrat seat)
• Brian Hayes’ term ends Dec. 16, 2012 (Republican seat)
• Mark Pearce’s term Aug. 27, 2013 (Democrat seat)
• Vacant term ends Dec. 16, 2014 (Democrat seat, currently occupied by Craig Becker via recess appointment.)
• Vacant term ends Aug. 27, 2015 (Republican seat, Terence Flynn nominated to, but not confirmed)

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:

• AFL-CIO
• Service Employees International Union
• International Union of Operating Engineers

Amicus briefs from employer groups:

• National Association of Waterfront Employers
• Georgia Chamber of Commerce
• International Foodservice Distributors Association
• Chamber of Commerce of the United States of America
• American Hospital Association and American Society for Healthcare Human Resources Administration
• American Health Care Association & National Center for Assisted Living and affiliates

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

P.S. We’ve knocked the NLRB for its foray into social media and Google advertising, inappropriate activities for a quasi-judicial agency. That said, the board and its staff have made excellent improvements to the board’s website, www.nlrb.gov, allowing relatively efficient researching of this case.

A suggestion: Instead of just posting with a single title that appears repeatedly, actually identify the party that submitted the brief in the title/link. Posting the name, “Chamber of Commerce of the United States of America,” is more informative than repeated entries of “Amicus Brief for 15-RC-008773.”

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:

[There] is real reason to fear that my colleagues’ ultimate purpose is to use this case as a vehicle for abnegating the statutory requirement in Section 9(c)(5) that “[i]n determining whether a unit is appropriate . . . the extent to which employees have organized shall not be controlling.” In some circumstances, it might be prudent for a Board Member to let the process play out before dissenting. Not here. There is too much at stake, both for the sake of industrial stability and for the Board’s reputation as impartial overseer of the representation election process. I find that there are no reasons at all to reconsider our unit determination policies, by adjudication or rulemaking, either in the nonacute health care industry or more generally in all industries. There are sound reasons not to do so, perhaps most significantly the risk that we may contravene our own Act, express Congressional intent, the experience informing our health care unit rules, and the Administrative Procedures Act.

Perhaps the NLRB will pull back, realizing the attempt to impose such a radical rewriting of labor law to the advantage the unions will appear nakedly political, ultimately illegitimate and invite a congressional rebuke.

But such restraint wouldn’t achieve the President’s stated objectives, would it?

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.

As a result of the decision, businesses could be forced to bargain with multiple unions for similarly situated employees, with each group of employees having separate wage schedules, benefit packages and work rules. Businesses, workers, consumers and the economy would suffer, as the negative impact on business productivity and competitiveness would be significant.

“What we are seeing is another blatant, politically motivated effort by the NLRB to subvert employee wishes and the framework of the law in favor of forced unionization no matter what the cost,” said Geoffrey Burr, Chairman of CDW. “The fractured bargaining scenarios that would result out of this will be nightmares for everyone involved.”

The NAM’s Manufacturing Law Center has more detail on the Specialty Healthcare and our brief here.

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 …

• Bloomberg, “Union Lawyer Becker Re-Nominated by Obama to U.S. Labor Board“
• Washington Examiner (blog), “Obama re-nominates radical union lawyer“
• Lane W. Imberman, McKnights, “Labor pains: Craig Becker’s troubling prescription for long-term care facilities“
• Katie Gage, Workforce Fairness Institute, Townhall.com, “Do Bureaucrats Know Better Than You? The NLRB Thinks So“
• Carl Horowitz, National Legal and Policy Center, “Will NLRB Create Stealth Pro-Union Legislation?“

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.

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.

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. 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?