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.)

(continue reading…)

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.

We’ve written extensively about the views of SEIU counsel Craig Becker as a nominee to the National Labor Relations Board. Now that the both Democrat nominees (Craig Becker and Mark Peace) have been recess appointed to the Board what should employers expect?

This is the first time since 2001 that there has been Democratic majority, the Board faces a huge backlog of cases from over the past two years as well as the potential for many contested rulings made by a two-member Board being deemed invalid by the Supreme Court. (The New Process Steel case.)

As numerous labor attorneys predict, the newly constituted Board is expected to take a new, potentially radically different approach to case decisions and may begin the process of rulemaking.

• Seth Borden of McKenna, Long and Aldridge believes that many cases decided in September 2007 may be revisited. They include Dana Corp., 351 NLRB No. 28 (Sept. 29, 2007), where the Board modified its recognition-bar doctrine. The Board held that an employer’s voluntary recognition of a union bargaining representative does not bar the processing of a decertification petition filed during the first 45 days after recognition.
• Former NLRB member John Raudabaugh, now with Nixon Peabody, highlights two key decisions as being at risk: Register Guard and Oakwood Healthcare Center. In Register Guard the Board determined that employees have no statutory right to use electronic resources of their employers (such as e-mail) for the purposes of unionization. In Oakwood Healthcare the board ruled that front line supervisors should not be members of collective bargaining unions that are designed for rank-and-file employees.
• Hal Coxson of the firm Ogletree Deakins offers a detailed review of key decisions that may be revisited. Coxson also sees a possiblity that a newly constituted board may attempt to codify more controversial policy changes through rulemaking. To read more click here.

As this blog has noted before, the current NLRB Chair Wilma Liebman has asserted that recess appointed Board members should show restraint in making major policy changes when she said: “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.” We hope that the current recess appointees heed this wise advice from the Chair. In the meantime, employers should prepare for a much more active Board, regardless of the direction it takes.

UPDATE (10:29am): Wilman Liebman speaking at the annual Hunter College national conference on collective bargaining in higher education yesterday detailed her view of the direction of the new NLRB according to BNA’s Daily Labor Report (subscription needed). She notes that the Board “will operate, I assume, under continuing scrutiny and controversy.” (continue reading…)

From a National Labor Relations Board news release, “New Board Members Take Office, Announce Chief Counsels“:

Board Members Craig Becker and Mark Gaston Pearce took office this week and began a series of orientation programs about the Board, its organizational procedures and case inventory.

Mr. Becker was sworn in to office on Monday by General Counsel Ronald Meisburg. Mr. Pearce was sworn in this morning by Chairman Wilma Liebman. Today the two new members were to meet with Chairman Liebman and Member Peter Schaumber and with their staffs.

Congratulations. Good luck.

With Craig Becker and Mark Pearce coming onto the National Labor Relations Board via presidential recess appointment, we hope they take seriously the words of their Democratic colleague, NLRB Chairman Wilma Liebman. Recess appointees should not make major policy decisions, she says.

This is not the first time Ms. Liebman has been on a Board of recess appointees. It happened in 2002. Speaking to both union- and management-side labor lawyers about her experience at the American Bar Association meeting of the Section of Labor Law (August 13, 2003), then-Member Liebman was quoted as saying, “Recess appointees should be hesitant to overrule precedent because it could be seen as a rush to judgment and undermine public confidence. In contrast, a decision to overrule precedent by a fully confirmed board can be perceived as having more credibility.” She continued, “Recess boards should be caretakers and keep the railroad running and not make major policy decisions.”

That’s from an entry by Harold R. Weinrich of Jackson Lewis, writing at the law firm’s Union and Labor Law Reform report, The NLRB in Transition – Whither Board Law?. He adds:

At least that is what she said when Republicans controlled the Board. We will be watching keenly whether Chairman Liebman will keep the Board from jumping the tracks of established policy now that Democrats are in charge. Regrettably, few, if any, practitioners (management or labor) believe she will remain true to her word on this. Odds are Liebman and Becker will work at peak throttle to reverse major Board decisions in order to fulfill their vision of Labor Law Reform, while bypassing Congress.

Yes, that’s the well-founded fear.

President Obama’s controversial nomination and even more controversial recess appointment of SEIU and AFL-CIO counsel Craig Becker to the National Labor Relations Board overshadowed the other appointee, Buffalo labor lawyer Mark Pearce. The Buffalo Law Journal interviews Pearce in “Recess appointment takes Pearce back ‘home’ to NLRB,” noting he began his legal career in the Buffalo office of the NLRB. As for the controversies:

As for the partisan political maneuvering that stalled his appointment for nearly a year, Pearce said it will have no impact on his job once he begins work next week.

“It’s just business,” he said of the work that lies ahead. “Politics is gone from my mind, and fortunately, I wasn’t involved in the politics.”

The board has had three vacancies since January 2008. The U.S. Supreme Court last month heard arguments in a lawsuit that challenges the legality of decisions made by an NLRB panel of two.

“There will probably be a backlog, but I won’t know with any specificity until I arrive next week,” he said Tuesday. “Our ability to get it all done will be good. We are well-staffed, and the staff has been waiting for us. It’s sort of like a finely-tuned craft waiting for the driver, and I’m one of the drivers finally showing up.”

Business groups that vigorously opposed Becker’s nomination did not seek to block Pearce’s nomination to the board. A Democratic President appointing a Democratic labor lawyer to the NLRB was to be expected, just as a Republican President will appoint Republican lawyers who have represented management. The distinction — which many of Becker’s apologists sought to obfuscate — is that, along with his radical writings on labor relations, Becker was actually an employee of two labor unions, the SEIU and the AFL-CIO, that not only seek to win individual cases before the NLRB but also pursue an aggressive policy agenda. It’s the use of the NLRB to achieve policy ends — such as enactment of part or all of the Employee Free Choice Act — that continues to worry employer groups.

Miscellaneous…

• The Buffalo Law Journal is the first article we’ve seen to report the date that Pearce will take office, Wednesday, April 7. Executive branch boards usually have a nice swearing in ceremony involving an Administration official, so one expects Becker would take office at the same time.
• Many of the news accounts announced last week that President Obama made recess appointments. Actually, the White House news release said, “President Obama announced his intent to recess appoint fifteen nominees to fill critical administration posts…”
• The White House has a nice spreadsheet online of its nominations, but it needs a new column: “Recess appointed.”
• Orange County Register columnist Dena Burns writes in “After health reform Obama has his mojo back“: “Obama made his first recess appointments – naming 15 people to fill jobs that the Senate has so far refused to confirm. And he included one that really annoyed the Republicans. Chicago labor lawyer and union official Craig Becker was named to the National Labor Relations Board. Translation: something for the Democratic base.”
• The NLRB continues to post news releases (here and here) highlighting enforcement actions only against employers, creating an impression of an activist agency that departs from its purpose as a disinterested, quasi-judicial agency.

The New York Times covers the President’s recess appointments of Craig Becker and Mark Pearce to the NLRB, “Deadlock Is Ending on Labor Board,” with a familiar exchange of hopes and fears for the new, activist board depending on your perspective. It closes with some interesting, speculation-inviting comments about potential NLRB rulemaking:

Harold P. Coxson Jr., a management lawyer and former Chamber of Commerce official, voiced concern that with Congress unlikely to enact legislation that makes it easier to unionize, the labor board “will make the difference in the debate.” Among the ideas that have stalled in Congress since the Democrats lost their 60-vote supermajority in the Senate is requiring snap unionization elections — within 7 to 10 days of pro-union workers petitioning for an election.

“We have heard that they are going to engage in rule-making that could impose ‘quickie’ union elections, perhaps in 5 to 10 days,” Mr. Coxson said. “The board will demonstrate with its agenda that they are not irrelevant.”

In an interview, Ms. Liebman declined to discuss the areas where the board might use rule-making.

“Rule-making is something that certainly academics have been talking about for some time,” she said. “I think it’s worth consideration. It’s often served up as the antidote to all the flip-flopping” between rulings by Democratic boards and Republican ones.

If rule-making proceeds, it could take place under a board makeup that will soon have a 4-1 makeup, Democratic vs. Republican members. (When will Becker and Pearce actually take office, anyway? The President announced his intent to make recess appointments, not the actual appointments.)

And here’s an interesting thought from Jeremy Lott, editor of the Capital Research Center’s Labor Watch, commenting on the U.S. Supreme Court’s consideration of the New Process Steel case dealing with the validity of two-member NLRB decisions.

For technical reasons, the Supreme Court is set to rule soon on whether the NLRB decisions of the last year-plus are valid. One labor watcher told me he hopes the justices throw the whole mess of them out. That way, he said, Becker and company would have their hands full for some time rehearing and reruling on the old cases. In his view, idle bureaucratic hands are a danger to our liberties.

Maybe. But these are capable people, and the work in those cases has already been done. Can’t imagine an adverse decision from the Court would cause that much of a delay.

P.S. On Wednesday, Shopfloor went an entire day without posting on Craig Becker and the National Labor Relations Board. Incroyable!

Although maybe the better exclamation is, iIncreíble! The White House announced the recess appointments in a Spanish news release, as well, “El Presidente Obama anuncia nombramientos de receso a puestos clave en el gobierno.”

Mark Hemingway of The Washington Examiner embarked Monday on a weeklong series of columns about the political power of organized labor, commenting that, “Whatever wants, labor gets.”  It’s hard to argue with the thesis when talking about the Obama Administration, but it’s not entirely true when elective representative bodies like the U.S. Senate are involved: Labor has not gotten the Employee Free Choice Act…so far.

Today’s column is “Big Labor fills the ranks of Big Government,” discussing the recess appointments to the National Labor Relations Board, the confirmation of Patricia Smith to be the Department of Labor’s solicitor, and Secretary of Labor Hilda Solis herself.

On Monday, Hemingway wrote, “Stuffing union coffers with taxpayer cash,” leading with the example of the anti-democratic unionization of daycare workers in Michigan.

One day last fall, approximately 40,000 private day care owners in Michigan woke up to discover they had become members of a public sector union. Most had no idea what was coming.

Here’s how it happened: The United Auto Workers and the American Federation of State, County and Municipal Employees worked with the Michigan Employment Relations Commission to conduct a vote-by-mail union election.

Of the 40,000 day care workers in the state, only 6,000 responded to the ballot they received in the mail. But that was enough for the state to declare all of the day care owners would henceforth be represented by the newly organized Child Care Providers Together Michigan union.

Governor Ted Kulongoski of Oregon and former Governor Eliot Spitzer of New York also signed executive orders to promote the unionization of private sector daycare workers in their respective states. (See Fordham Urban Law Journal.)

The actions by these governors, heavily supported by organized labor, seems even more economically ominous given a program included in the new health care law. Jeffrey Birnbaum in The Washington Times reports on the issue in a column, “The not-so-Class Act“:

The health legislation signed into law last week by President Obama includes a provision called the CLASS Act, which provides long-term care at home. Few people know about it, but experts agree that it could well explode the federal budget deficit down the road.

The Community Living Services and Support (CLASS) Act was designed to assist people who need help with basic daily tasks and are willing to pay for in-home assistance. The plan, which was long championed by the late Sen. Edward M. Kennedy, would, in effect, enable elderly and disabled people to stay out of nursing homes.

People who paid into the program for five years could qualify for federal subsidies to purchase in-home care. As Birnbaum argues, laudable goals but fiscally unsustainable. We predict when the rules are written, the only in-home care providers eligible for the program will be subject to (forced into) union membership. The SEIU smiles.

Here’s an angle we had not come across before, as reported by Inside Higher Ed, “Obama Recess Appointments Could Help Grad Unions“:

President Obama on Saturday announced that he was making recess appointments of 15 of his nominees whose confirmations have been blocked by Senate Republicans’ refusal to allow votes on them — and two appointees in particular could lead to a major change for higher education. Those appointees — Craig Becker and Mark Pearce — will restore a quorum to the National Labor Relations Board. The NLRB has lacked a quorum throughout the Obama administration, leading to legal challenges to its right to decide cases. One of the major goals for academic labor for the Obama administration was to see a reversal of the 2004 NLRB decision that effectively shut down the unionization of graduate student teaching assistants at private universities. But labor groups have hesitated to bring a challenge to the ruling while the NLRB lacked a quorum. The leaders of private universities generally oppose unionization of graduate students.

Historical context follows.

Inside Higher Ed, January 28, 2009, “Return of Grad Union Movement“:

Unions worked hard for President Obama in November — and those in academic unions have had high hopes that his actions would revive the movement to organize graduate teaching assistants at private universities.

In his first move related to the National Labor Relations Board, Obama has cheered those unions by designating as chair Wilma B. Liebman, who is on record as backing collective bargaining rights for private universities’ graduate teaching assistants. Liebman was originally appointed to the NLRB by President Clinton, and she was one of two members who wrote a strong dissent to the 2004 decision that effectively shut down union organizing at private institutions. While she has the same vote as chair as do other members, the signs suggest that her views won’t be in the minority.

New York Times, July 16, 2004, “Labor Board Says Graduate Students at Private Universities have No Right to Unionize“:

The fast-growing movement to unionize graduate students at the nation’s private universities suffered a crushing setback yesterday when the National Labor Relations Board reversed itself and ruled that students who worked as research and teaching assistants did not have the right to unionize.

In a case involving Brown University, the labor board ruled 3 to 2 that graduate teaching and research assistants were essentially students, not workers, and thus should not have the right to unionize to negotiate over wages, benefits and other conditions of employment.

On Tuesday, when President Obama signs the reconciliation bill — with its nationalization of the student loan program — there will no doubt be claims that a college education will get cheaper. But thanks to the recess appointments to the NLRB, sometime in the next couple of years expect to see a university issue a news release, “Graduate tuitions raised to deal with higher costs, wage demands.”

More on the President’s announcement of his intention to make recess appointments of 15 officials, including SEIU counsel and radical labor theorist Craig Becker as well as Buffalo labor lawyer, to the National Labor Relations Board (extensive Shopfloor coverage from the weekend starting here). From Bloomberg, “Labor Agenda May Advance, Business Sees ‘Red Alert’ on Becker“:

March 29 (Bloomberg) — Efforts by labor unions to expand employee organizing may gain after President Barack Obama, rejecting objections from Republicans and business groups, appointed Craig Becker to the National Labor Relations Board.

Obama announced plans on March 27 to name Becker, a lawyer and Democrat who represented the AFL-CIO and the Service Employees International Union, using executive powers to bypass confirmation by the Senate, which had blocked a vote this month.

Becker, opposed by groups led by the National Association of Manufacturers, will be named along with lawyer Mark Pearce, a Democrat, providing a quorum to clear a case backlog including disputes with casino owner MGM Mirage and auto-parts maker Dana Holding Corp.

Senate Majority Leader Harry Reid (D-NV), via AP: “Regrettably, Senate Republicans have dedicated themselves to a failed strategy to cripple President Obama’s economic initiatives by stalling key administration nominees at every turn.”

Sen. John McCain (R-AZ), a statement:

I am very disappointed that the President chose to recess appoint 15 people, including Mr. Craig Becker to serve on the National Labor Relations Board (NLRB). The U.S. Senate rejected this highly controversial and partisan nominee, and once again the Administration showed that it had little respect for the time honored constitutional roles and procedures of Congress. This is clear payback by the Administration to organized labor. Time and again questions have been raised over Mr. Becker’s ability to serve in an honest and impartial manner on the NLRB, yet this Administration chose to ignore the questions and concerns and instead forced their will on the American people.

• Wall Street Journal, “Tensions Flare After Recess Maneuver”
  Chris Stirewalt, Washington Examiner column, “What thrills the Left will scare away the center.”
  Daily Beast, “GOP Fired Up Over Appointments”
  New York Times, “Democrats defend appointments“