Senate Republican Leader Mitch McConnell (R-KY) singled out the two nominees named to the National Labor Relations Board, Craig Becker and Mark Pearce, in his statement sharply criticizing President Obama’s announcement of his intention to make 15 recess appointments. Via e-mail:

WASHINGTON, D.C. – U.S. Senate Republican Leader Mitch McConnell (R-KY) released the following statement on the President’s decision to recess appoint Craig Becker to the National Labor Relations Board (NLRB).

“The President’s decision to override bipartisan Senate rejection of Craig Becker’s nomination is yet another episode of choosing a partisan path despite bipartisan opposition. The President previously held that appointing an individual in this manner meant that the nominee would have ‘less credibility,’ and that assessment certainly fits this nomination. Additionally stunning is the Administration’s decision to recess appoint two Democrat nominees to the NLRB and leave the Republican behind. This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel.”

The White House beefed up its news release with a blog post by Jen Psaki, the White House’s Deputy Communications Director, “An Unprecedented Level of Obstruction.” The post also highlights Becker and Pearce’s appointment, but makes no mention of Hayes.

More …

• Reuters, “Obama makes 15 recess appointments, blames Republicans”
• The Associated Press, “Obama announces 15 recess appointments, scolds GOP”

UPDATE (6:15 p.m.): Sen. McConnell’s statement makes more sense with the citation of then Senator Obama included in McConnell’s e-mail:

SEN. BARACK OBAMA (D-IL)On A Recess Appointee: “To Some Degree, He’s Damaged Goods.” “To some degree, he’s damaged goods … Not in the history of United Nations representatives have we ever had a recess appointment, somebody who couldn’t get through a nomination in the Senate. And I think that that means that we will have less credibility and ironically be less equipped to reform the United Nations in the way that it needs to be reformed.” (“Bush Sends Bolton To U.N.” The [Springfield, IL] State Journal-Register, 8/2/05)

The White House had obviously kept Wilma Liebman, chairman of the National Labor Relations Board, in the loop on President Obama’s intention to make recess appointments to the NLRB. At 4:08 p.m. the board’s press shop Tweeted its news release, “White House announces recess appointments of two attorneys to fill Board vacancies.” You would hope an independent, quasi-judicial agency would keep a little distance from the political moves of the White House, but welcoming new members is harmless enough, probably.

The labor group, American Rights at Work, was naturally delighted with the appointment of two labor lawyers to the NLRB, Tweeting, “Obama has appointed Craig Becker and Mark Pearce to the NLRB. We can’t wait for them to get to work for working people!” You would hope an independent, quasi-judicial agency would get to work interpreting the law.

So now three Democrats and one Republican will comprise the Board. The term of the Republican, Peter Schaumber, ends on August 27, 2010. The possibility, however theoretical, of an NLRB made up of three members of only one party should give pause. The term of the general counsel, Ronald Meisburg, a Bush appointee, also expires in August. Unlike most federal branch agencies, the NLRB’s general counsel must be confirmed by the Senate, so more maneuvering is possible. Brian Hayes, the pending Republican nominee whom President Obama did not appoint, is likely to buffeted by the political winds.

More…

The Hill (blog), “Labor group praises Obama for appointing Becker, Pearce”

UPDATE (6:45 p.m.): Bloomberg reports, “Obama Bypasses Senate, Makes Appointments to NLRB, Treasury, quoting the NAM’s Keith Smith:

“You will see a radical overhaul of the labor law system,” said Keith Smith, director of employment and labor policy at the Washington-based industry group. “You could see significant limits on employers’ ability to communicate.

Now that the President has announced his intention to make 15 recess appointments, Politico’s story on Senate Majority Leader Harry Reid’s views on recess appointments takes on an interesting, new light.

Reid had told White House officials he’s willing to accept the appointment of union-friendly lawyers Craig Becker and Mark Pearce to fill two longstanding vacancies on the five-member board, according to Democrats familiar with the situation.

But he had also made it clear that making recess appointments of dozens of other nominees stalled by Republicans would violate “senatorial prerogatives” — and over-using the side-door process could open up Democrats to election year attacks, according to a senior Democrat on condition of anonymity.

“Harry doesn’t like it, but he’ll tolerate it for the NLRB guys,” the senior Democrat said of recess appointments.

And how about the 13 others?

Should we anticipate a return to the sub-minute pro forma sessions that the Majority Leader used to interrupt Congressional recesses during the Bush Administration? You remember, don’t you?

Associated Press, May 24, 2008, “Pro forma sessions block Bush“:

The Senate is famed for its long-winded debates, but on Friday it took Democratic Sen. Sherrod Brown just seconds to stop Republicans in their tracks.

With the Senate entering the first day of its Memorial Day recess, the Ohio senator was briefly in the chair, before a near-empty chamber, to gavel in and gavel out what is called a pro forma session. Without that procedural move, the Senate would technically be adjourned and President Bush could install administration officials or judges as “recess appointments” — without Senate confirmation.

“That’s the fastest I’ve ever done it,” said Brown, who like other freshmen does duty as presiding officer when the Senate is in regular session. He said he didn’t realize until he got there that the prayer and Pledge of Allegiance, which usually open a session, were dispensed with for pro forma meetings. 

“I’m willing to do it,” Brown said of showing up when nearly every senator has already left town. “We’re not going to let them get away with that kind of abuse of power.”

The U.S. Supreme Court today holds oral arguments in the case, New Process Steel v. National Labor Relations Board. The question presented:

Does the National Labor Relations Board have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

As the ScotusWiki entry on the case explains: “The events leading to this case have their origins in late December 2007, when the Board had four members. With the terms of two of those four members about to expire, the Board delegated its authority to a ‘group of three or more members.’ One of those three members left a few days later, leaving two Board members – who have made all NLRB decisions since then.”

This dilemma was caused when President Bush’s recess appointments were blocked by Senate Democrats after Senate Majority Leader Harry Reid (D-NV) began the practice of scheduling pro forma sessions to prevent the occurrences of recesses.

The U.S. Seventh Circuit of Appeals on May 1, 2009, upheld a decision by the two-member board, recognizing the smaller quorum. On the same day, however, the D.C. Circuit ruled that the Board must have at least three sitting members. Several hundred decisions by the smaller NLRB could be in jeopardy.

Big Labor and its allies in Congress have challenged the legitimacy of the smaller National Labor Relations Board to argue for approval of President Obama’s nominees to the NLRB, including the controversial SEIU counsel Craig Becker. If the President decides to make Becker his first recess appointment — something that could occur as early as next week — Becker’s defenders will cite the Supreme Court case as one reason. But of course you don’t have to have to appoint a radical labor union counsel to achieve a larger quorum. You can simply start with Senate confirmation or a recess appointment of the other two nominees, Mark Pearce and Brian Hayes.

Earlier posts on Craig Becker.

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.”

Thanks to the Mid-Atlantic snowstorm, Senate debate on the nomination of SEIU counsel Craig Becker to the National Labor Relations Board has been postponed until Tuesday. A cloture vote is now anticipated after 5 p.m.

Opposition to Becker is strong among the business community:

• Feb. 5 letter from the National Retail Federation.
• Feb. 4 letter from the U.S. Chamber of Commerce.
• Feb. 1 Jetter from National Association of Manufacturers and more than 550 manufacturing companies and associations.
• Feb. 1 letter from the Coalition for a Democratic Workplace, to the NAM belongs.
• Jan. 29 letter from 23 business trade associations, including the NAM.

Kevin Williamson, an editor at National Review, analyzes Becker’s anti-employer writings and calls Becker The ‘Shut Up’ Candidate“:

He has argued that businesses should be prohibited from presenting the case against organizing unions — to their own workers, on their own property, on their own time. And if secret-ballot elections survive his card-check dreams, he doesn’t want anybody taking too close a look at any possibly fraudulent election: He has written that employers should be banned from placing observers at the polls or challenging ballots. He argues that businesses should be compelled to open up their own private property so that union organizers may conduct their electioneering on the premises.

So what if the organizing vote is fraudulent? Or marked by the trademark violence and intimidation tactics long associated with Big Labor? Becker’s answer, in his own words, is this: “Employers should have no right to raise questions concerning voter eligibility or campaign conduct. . . . They should not be entitled to charge that unions disobeyed the rules governing voter eligibility or campaign conduct. On the questions of unit determination, voter eligibility, and campaign conduct, only the employee constituency and their potential union representatives should be heard.” Legalese for: “Shut up.”

The Senate breaks next week for the Presidents Day recess, and buzz is picking up about a possible recess appointment for Becker. The unions are signaling their support for the move, a Politico article suggests:

“They can’t let the minority party call the shots when it comes to the handling of critical nominations,” Bill Samuel, legislative director of the powerful AFL-CIO, said, calling on Obama to consider recess appointing Becker if his nomination stalls.

According to the Congressional Research Service, a recess appointment made in mid-February would serve until the conclusion of the next Senate session, i.e., the end of 2011.  One wonders: If President Obama were to recess appoint Becker, what would happen to the two, non-controversial nominees, Mark Pearce, the Democrat, and Brian Hayes, the Republican? Recess appointments also, or straight up-and-down Senate votes allowing them to complete terms, which for Hayes is through 2012 and for Pearce, 2013?

Finally, as previously noted, NLRB Chairman Wilma Liebman on Friday took the unusual step of getting involved in the Senate confirmation battle by issuing a news release decrying the lack of a full quorum on the NLRB. She omits the fact that President Bush’s nominees to fill the vacancies in 2007 and 2008 were blocked by the Senate majority, who also prevented recess appointments by scheduling regular pro forma sessions.

The Hill, “Labor board chief wants vote on NLRB nominees“

Amid the health care and debt debates on Dec. 24, the Senate conducted a bit of low-profile but welcome business, sending back to the White House a number of controversial nominees made by President Obama.

Included in the list of too-hot-to-touch nominees is Craig Becker, counsel for the Service Employees International Union nominated to serve on the National Labor Relations Board. Becker has proposed a radical shifting of employee-employer relations to force unionization of workplaces. The National Association of Manufacturers formally opposed his nomination.

Despite Becker’s outside-the-mainstream views, the Senate Health, Education, Labor, and Pensions Committee confirmed his nomination without even holding a hearing to hear Becker’s testimony. Sen. John McCain (R-AZ) subsequently put a hold on Becker’s nomination.

Here’s the Senate’s rejection of the nominee made via a procedural move as reported on page S14139 of The Congressional Record:

ORDER FOR NOMINATIONS RECEIVED
Mr. CARDIN. As in executive session, I ask unanimous consent that all the nominations received by the Senate during the 111th Congress, first session, remain in status quo, notwithstanding the December 24, 2009, adjournment of the Senate, and that the provisions of rule XXXI, paragraph 6, of the Standing Rules of the Senate, with the following
exceptions: PN1119, COL David Teeples; Calendar No. 32, Dawn Johnsen; Calendar No. 205, Mary Smith; Calendar No. 312, Christopher Schroeder; Calendar No. 488, Edward Chen; Nos. 491 and 492, Craig Becker, and Calendar No. 579, Louis Butler.
The PRESIDING OFFICER (Mr. PRYOR). Without objection, it is so ordered.

The Washington Post briefly reported the Senate’s action at its Federal Eye blog. Edward Hopson at the Wyatt Employment Law Report also notes Becker’s problems and reports that the other two nominees to the NLRB — former Republican Senate staffer Brian Hayes, and Buffalo, N.Y., labor lawyer Mark Pearce — were not voted on by the Senate.

The President can send Becker’s nomination back up to the Senate in 2010, but might we see the first occasion for an Obama recess appointment? In the Bush Administration, Senate rejection prompted recess appointments (see CRS report), but the Obama Administration has yet to take that step in light of the Democratic majority in the Senate.

Whatever the next steps, the Senate’s action is a clear statement from the Democratic majority that the nomination of a top union lawyer with a history of seeking to marginalize employers was politically untenable.

UPDATE 4:40 p.m. The Senate’s action occurred under Rule XXXI, Paragraph 6, of the Standing Rules of the Senate. Also, this Point of Law post covers the Senate’s decision to return the nomination of two controversial judicial nominees, Louis Butler and Edward Chen.

The Wall Street Journal today editorializes on President Obama’s three nominees to the National Labor Relations Board and the need for the Senate HELP Committee to hold confirmation hearings to delve into the records and thinking of the candidates, in particular, former SEIU counsel Craig Becker. From “Acorn’s Ally at the NLRB,” with the sub-hed, “Obama appoints an SEIU man with ties to Blago”:

Mr. Becker is associate general counsel at the Service Employees International Union (SEIU), which is most recently in the news for its close ties to Acorn, the disgraced housing shakedown operation. President Obama nominated Mr. Becker in April to the five-member NLRB, which has the critical job of supervising union elections, investigating labor practices, and interpreting the National Labor Relations Act. In a 1993 Minnesota Law Review article, written when he was a UCLA professor, Mr. Becker argued for rewriting current union-election rules in favor of labor. And he suggested the NLRB could do this by regulatory fiat, without a vote of Congress.

Yet now that he could soon have the power to act on this conviction, Mr. Becker won’t tell Congress if this is what he still believes. In written responses to questions from Republican Orrin Hatch, Mr. Becker promised only to “maintain an open mind about whether [his] suggestions should be implemented in any manner.” That sounds like his mind is made up but he won’t admit it lest it hurt his confirmation.

The Journal observes that it’s not unusual for nominees to the bipartisan NLRB to be packaged together for a confirmation vote without a hearing, and in this case, Sen. Mike Enzi (R-WY), ranking Republican on the HELP Committee, understandably wants to ease things for the GOP candidate, his former committee aide, Brian Hayes. (The other nominees is Mark Pearce, a longtime labor lawyer from Buffalo.)

But too much is at stake with the National Labor Relations Board, and the pro-labor majority could push organized labor’s jobs-killing agenda through regulation and rulings, achieving what could not be achieved through Congress.

We posted on the nominees yesterday at the Manhattan Institute’s legal blog, Point of Law, commenting: “You would think that an Obama Administration, intent on transparency, would insist that its nominees receive the public scrutiny that comes with confirmation hearings.”

Accountability demands a hearing.

Related…

• Workforce Management, “NLRB Decisions Could Make Card Check a Reality“
• Walter Olson, Point of Law, “The Obama NLRB arrives“
• Shopfloor, “Card Check and the National Labor Relations Board”

From the White House news release announcing nominations Friday, two proposed members of the National Labor Relations Board. Certainly impressive credentials.

Craig Becker, an SEIU counsel, has already been working for the White House. Evidence points to his having written one of the first White House executive orders on labor policy, “NOTIFICATION OF EMPLOYEE RIGHTS UNDER FEDERAL LABOR LAWS.” (See our Shopfloor.org post, “President Obama and Organized Labor V, Executive Orders Authorship.”)

You know, if a corporate lawyer had written a Bush executive order, there would have been an uproar in the media. But when a union lawyer writes an Obama executive order? Nada. Maybe’s it’s worth a question at a confirmation hearing.

But certainly well qualified nominees.

Craig Becker, Nominee for Board Member, National Labor Relations Board
Craig Becker currently serves as Associate General Counsel to both the Service Employees International Union and the American Federation of Labor & Congress of Industrial Organizations. He graduated summa cum laude from Yale College in 1978 and received his J.D. in 1981 from Yale Law School where he was an Editor of the Yale Law Journal. After law school he clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. For the past 27 years, he has practiced and taught labor law. He was a Professor of Law at the UCLA School of Law between 1989 and 1994 and has also taught at the University of Chicago and Georgetown Law Schools. He has published numerous articles on labor and employment law in scholarly journals, including the Harvard Law Review and Chicago Law Review, and has argued labor and employment cases in virtually every federal court of appeals and before the United States Supreme Court.

Mark Pearce, Nominee for Board Member, National Labor Relations Board
Mark Gaston Pearce has been a labor lawyer for his entire career. He is one of the founding partners of the Buffalo, New York law firm of Creighton, Pearce, Johnsen & Giroux where he practices union side labor and employment law before state and federal courts and agencies including the N.Y.S. Public Employment Relations Board, Equal Employment Opportunity Commission, the U.S. Department of Labor, and the National Labor Relations Board. Pearce in 2008 was appointed by the NYS Governor to serve as a Board Member on the New York State Industrial Board of Appeals, an independent quasi-judicial agency responsible for review of certain rulings and compliance orders of the NYS Department of Labor in matters including wage and hour law. Pearce has taught several courses in the labor studies program at Cornell University’s School of Industrial Labor Relations Extension. He is a Fellow in the College of Labor and Employment Lawyers. Prior to 2002, Pearce practiced union side labor law and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP. From 1979 to 1994, he was an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.