President Obama visited a Fairfax, Va., family last September to promote his Administration’s agenda before the 2010 elections. Asked about the prospects for passing the Employee Free Choice Act, i.e., card check, the President said [our emphasis]:

Frankly, we don’t have 60 votes in the Senate. So the opportunity to actually get this passed right now is not real high. What we’ve done instead is try to do as much as we can administratively to make sure that it’s easier for unions to operate and that they’re not being placed at an unfair disadvantage.

The move (discussed below) by the National Labor Relations Board to redefine acceptable bargaining units and allow “micro unions” sure looks like the President’s plan put into action, doesn’t it? Don’t pass a law, don’t even hold a formal rule-making procedure, just solicit amicus briefs and then issue a ruling that overturns decades of precedent and rewrites labor law.

Three U.S. Senators have registered their objections to the NLRB’s attempt to circumvent the policymaking branch of government, Congress. In a March 8 letter to the board, Sens. Mike Enzi (R-WY), Orrin Hatch (R-UT) and Johnny Isakson (R-GA) wrote:

As United States Senators and members of the Health, Education, Labor and Pensions (“HELP”) Committee, we have a vested interest in the outcome of the underlying case. When an independent government agency, acting within its discretion, creates policy that conflicts with federal statute, or attempts to circumvent the legislative or rulemaking process, Congress must weigh in to ensure constitutional boundaries are not crossed. What we have learned from various stakeholders is that the decision in Specialty Healthcare could result in changing the determination of appropriate bargaining units in every workplace under the Board’s jurisdiction. We believe such a major change should only be done by amending the statute, which is the exclusive province of Congress.

The Senators acknowledged that the board can at times change policy through adjudication, i.e., ruling on a case, and it would be appropriate to seek amicus briefs in those circumstances. However, that process should not be a substitute for formal rulemaking, they argued.

The NLRB voted 3-1 to go ahead with its review in the Specialty Healthcare case, with the three votes coming from the Democratic members: Chairman Wilma Liebman, former labor lawyer Mark Pearce, and former SEIU and AFL-CIO counsel Craig Becker, a recess appointee. In his dissent, the sole Republican on the board, Brian Hayes, delineated how the majority’s overreach in entering the policymaking realm. Indeed, neither of the two parties in the case sought the broad review the board is undertaking. Hayes concluded: (continue reading…)

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

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

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

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

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

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

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“

Has any political watcher seen something like this before, a chairman of an executive branch agency getting involved in a political nomination battle like this? Highly unusual, especially before a highly partisan battle on the Senate floor, Monday’s cloture vote on the nomination of Craig Becker to the NLRB.

With the NLRB also before the Supreme Court in the appeal of New Process Steel v. NLRB, doesn’t this statement also undermine the NLRB’s case that two-member quorums represent an appropriate, legal delegation of authority? (For more background, see this Jackson-Lewis post, “U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum.”)

A statement from Wilma Liebman, chairman of the National Labor Relations Board:

NLRB Chairman on Pending Nominations

WASHINGTON—In response to numerous press inquiries, National Labor Relations Board Chairman Wilma Liebman made the following statement regarding nominations to the Board of Craig Becker, Mark Pearce and Brian Hayes that have been pending before the Senate since July of 2009:

“I am disappointed that we still do not have a fully constituted Board despite the naming of three nominees last summer. The Board has been in limbo for a long time. For more than two years, the Board has had to operate with three vacancies, leaving only myself and Member Peter Schaumber to decide the hundreds of cases that come before us. We have done our best to carry out the Board’s important work, issuing more than 500 decisions in cases involving thousands of workers across the country. But our authority to do so has been challenged and now the Supreme Court will decide whether we can continue to function. At the same time, the Board has been unable to move forward on the most significant cases before it. I look forward to a time in the near future when the Board is back at full capacity resolving issues vital to American workers and their employers.”

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

Leibman is a Democratic appointee, but we’ve never before seen a Democrat or Republican member of an independent executive branch agency take such an overt, political role in a nomination.