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.)

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The National Labor Relations Board has posted the amicus briefs submitted in response to the NLRB’s review of a case that the board could use to justify a radical change in labor policy, the authorization of “micro unions.” (See our posts immediately below here and here.)

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 (continue reading…)

Brad Peck at The Chamber Post, the U.S. Chamber’s blog, reads the news releases from the National Labor Relations Board and detects a one-sidedness, that of the board emphasizing decisions that favor labor unions. From “NLRB – The National Union Encouragement Board“:

So the NLRB has issued 24 press releases this year — and yes these were the first two to report the results of an election where workers were choosing to be represented or not. To be fair, there was another release “NLRB releases vote count in California Kaiser election” where the NLRB reported on a vote count in which workers voted to leave the SEIU for NUHW — curiously that one didn’t make it onto Twitter.

Going back further none of the forty 2009 releases reported on the results of representation elections, there were also zero such releases in 2008, 2007, 2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, or in 1996 where the archives stop.

Unions and some Board folks have in the past cherry picked a few words out of the 1935 policy declaration in the Wagner Act that it is the policy of the US to “encourage” collective bargaining – as if the 1947 Taft-Hartley amendments were never enacted. This may be the line of thought justifying the new issuance of releases trumpeting employees choosing a union, while not issuing similar releases heralding the rejection of a union — but the NLRB should be proud whenever a fair election is conducted, whatever the results.

Yes, it’s as if the board is cheering on union victories, which is odd behavior for a quasi-judicial board.

Earlier Shopfloor posts:

• Feb. 18, 2010, “Politicizing the NLRB“
• March 4, 2010, “Politicizing the NLRB, II“

In a memo to the SEIU’s Board, the current SEIU interim-president and Andy Stern’s heir apparent, Anna Burger, outlined her campaign to succeed Stern at the labor union’s president. In a detailed memo she describes specific tactics that she will seek to employ if elected president. One item jumped out as worthy of alarm:

Use smart strategies to push the labor‐friendly majority on the NLRB to level the playing field and make it easier to organize through regulation and reconciliation to make quick elections and first contract arbitration the law of the land

The NAM has been quite concerned that the National Labor Relations Board (NLRB) may seek to implement elements of the jobs-killing EFCA through Board actions. It’s been clear for some time that organized labor bosses wanted to circumvent Congress by implementing their highest priority item – EFCA – through the NLRB. The AFL-CIO’s Stewart Acuff made the point clearly when supporting the nomination of Craig Becker to the Board. Now, this memo from Anna Burger confirms her plans to push the newly constituted board to enact such radical policy changes to U.S. labor law.

NLRB Chairman Wilma Liebman has recommended against an aggressive agenda that puts the Board in a policymaking role. We hope her colleagues follow her advice.

To read this memo click here. (Hat tip: Ben Smith @ POLITICO)

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.

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.”

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.

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.

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