Posted on October 23, 2009 by EFCAreport

Would NLRB Member Craig Becker Push to Implement EFCA Without Passage of the Legislation?

That seems to be a question being asked by many people following the Senate consideration of President Obama's three nominees to the National  Labor Relations Board.  On Wednesday, the Senate H.E.L.P. Committee approved the nominations.  While the nominations of union attorney Mark Gaston Pearce and Republican Senate Committee policy director Brian Hayes were approved unanimously, eight of the twenty-three Senators voted against moving SEIU attorney Craig Becker's nomination forward.

Immediately following the Committee's vote, Sen. John McCain (R-AZ) placed a "hold" on Mr. Becker's nomination.  While editorializing on the Senator's intent, a piece in the anti-corporate publication In These Times identified some of the concerns being expressed about Mr. Becker thus:

As a legal scholar, Becker helped lay the intellectual foundation for the Employee Free Choice Act.

In one law review article, he suggested that much of the work of EFCA could be done through the existing regulatory structure. The NLRB administers the National Labor Relations Act, the primary legislation that governs labor/management relations.

Of course, the author in this case is clearly sympathetic to this course of action.  (In an interesting concluding note. she also suggests that Sen. Harry Reid (D-NV) might force the confirmation vote over McCain's hold, and that Democrats would likely prevail on a cloture vote on the confirmations -- all perhaps as soon as October 27.)

That Mr. Becker and allies on the Board might implement elements of the Employee Free Choice Act -- with or without the bill's passage by the Legislature -- is indeed one issue that has been raised by many critical of his nomination.  Both the U.S. Chamber of Commerce and the National Association of Manufacturers have sent letters to the Senate H.E.L.P. Committee expressing this concern.  Ranking Member of the Committee, Senator Michael Enzi (R-WY) acknowledged as much in his released statement the morning of the votes:

While I support moving the package forward as the Chairman and Ranking Member have done in previous Congresses and Senator Kennedy and I did back in 2006, I do have some serious concerns with Mr. Becker’s writings – particularly the potential for radical changes in labor law he has advocated, and argued can be implemented, without Congressional authorization.

Likewise, Committee Chair Sen. Tom Harkin (D-IA), who has resisted calls for a confirmation hearing on Mr. Becker's nomination, addressed the issue:

"As an academic Mr. Becker has written extensively on a variety of legal topics. He has taken a critical approach to existing law and pushed the boundaries of convention in his field. It’s clear, however, that he understands and respects the distinction between being an intellectual advocate and serving as an adjudicator on the Board. He is fully aware that as a member of the Board his role will be – and I quote from his responses to the Committee’s questions here: – to 'implement Congress’s intent as expressed in the law, to fairly consider all views … to deliberate with my fellow Board members, to utilize the wealth of knowledge and experience possessed by the Board’s career staff, and to fairly and impartially decide cases based on the relevant facts and applicable law.'

We will continue to follow these developments and report on them here.

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Posted on October 21, 2009 by EFCAreport

Sen. McCain (R-AZ) Blocks Confirmation of NLRB Nominees

The Wall Street Journal, Associated Press, and Crain's Workforce Management report that Senator John McCain (R-AZ) placed a "hold" on Craig Becker's nomination to the National Labor Relations Board, blocking Senate confirmation, notwithstanding approval by the Senate HELP Committee.  From the WSJ this afternoon:

Becker’s nomination to the NLRB, which supervises union elections and referees disputes between employers and employees, has been a matter of dispute for months. The U.S. Chamber of Commerce has repeatedly pressed for a HELP Committee hearing, citing concerns about Becker’s writings on the labor law he’d help interpret if confirmed to the board. The business group says Becker’s written positions have been well outside the mainstream and they fear he’d disrupt the “delicate balance” in current labor law to disadvantage employers.

McCain voiced similar concerns in a letter to HELP Committee Chairman Tom Harkin of Iowa, also seeking a hearing. McCain wrote that Becker’s writings “indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” McCain added that he wanted a chance to question Becker about these positions in person and in public. Today’s 15-8 vote was taken without a hearing.

The HELP Committee also unanimously approved two other NLRB nominees, Mark G. Pearce, a Democrat and an attorney who represents unions, and Republican HELP Committee staffer Brian E. Hayes.

NAM's ShopFloor.org blog has additional comment in its post, "SEIU Attorney Craig Becker’s Nomination for NRLB Clears Committee."

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Posted on October 20, 2009 by EFCAreport

Senate Committee to Act on Obama NLRB Nominees

President Obama's three nominees to the National Labor Relations Board are headed Wednesday for a Committee vote by the Senate Health, Education, Labor and Pensions Committee.  Our observations about the climate in The Hill today: 

As card-check has stalled in Congress, business groups’ attention has increasingly turned to the administration, which has taken more action on labor’s priorities, according to Richard Hankins, the head of McKenna Long & Aldridge’s labor and employment practice.

“The shift in labor policy toward labor’s agenda is in these other areas right now,” said Hankins, who has represented employers before the NLRB.

We have previously noted the controversy which Mr. Becker's nomination has generated.  Likewise, as the Committee readies itself for action on the nomination, The Hill notes:

Like business groups, Senate Republicans on the HELP Committee have criticized Becker, much more than the Democrats’ other NLRB nominee, Mark Pearce, a Buffalo, N.Y., lawyer who practices labor law. Since their nomination by Obama in April, Becker has received close to 300 questions from GOP panel members, much more than the roughly 30 sent to Pearce, according to committee aides.

It is highly unusual for an NLRB nominee to receive a public hearing. The last such hearing was in 1993, according to one committee aide.
 

Hankins said board nominees are typically packaged together for Senate approval and win confirmation after closed-door negotiations between lawmakers.  “It is rare to have public hearings because of those dynamics and the opportunity to make a political deal,” Hankins said.

We will report the Committee's action tomorrow.

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Posted on October 14, 2009 by EFCAreport

Colorado Supreme Court: State "Secret Ballot" Initiatives May Proceed

State Bill Colorado and Boulder's Daily Camera report that on Tuesday, the Colorado Supreme Court ruled that three state ballot initiatives opposing provisions of the federal Employee Free Choice Act may proceed under state law.  The Court held that consideration Initiatives 22, 23 and 24, which would amend the Colorado Constitution to preserve the right to a secret ballot in employee representation elections, does not violate the state election law's "single subject rule."

An AFL-CIO lobbyist, Philip Hayes, filed a challenge to the initiatives but the Court ruled that they were fair under the state law:

Hayes contends that the Initiatives contain more than a single subject in violation of article V, section 1(5.5) of the Colorado Constitution. Specifically, Hayes asserts the Initiatives seek to establish both a general right to secret ballot voting in all voting situations, and a more narrow right to secret ballot voting in employee representation elections. However, Hayes’ reading of the Initiatives focuses on one sentence and ignores the context supplied by text on either side. Upon reading the Initiatives as a whole, we conclude the Initiatives carry out only one general purpose. Thus, we hold the Initiatives do not violate the constitutional prohibition on multiple subjects.

Thus it seems the voters of Colorado may have the opportunity to vote on these initiatives in a state election, if the federal government passes a version of EFCA containing card-check provisions.

As we noted earlier this year, the many efforts underway to invalidate EFCA provisions by state constitutional amendment will face many legal hurdles -- not the least of all, federal preemption.  But at least one such effort, in Colorado, appears to have cleared the first significant challenges inside the state.

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Posted on October 13, 2009 by EFCAreport

NY Post: Will Unions Oppose Baucus Bill at Risk of Turning Dems Off on EFCA? UPDATE: Yes.

An Op-Ed in today's New York Post reported that many labor unions hate the so-called "Baucus bill" on healthcare insurance which passed a vote in the Senate Finance Committee earlier today.  The editorialist, however, suggested that these unions were conflicted on how strenuously to voice their displeasure at the risk of squandering political capital with the Democrats in Congress:

Why, then, aren't the unions screaming in opposition to Baucus' "compromise"? There's not even a giant, inflatable "Scabby the Rat" in front of the senator's office . . .

It's because the unions don't want to double-cross their friends on Capitol Hill. If Big Labor pushes too hard for a public option, it might get the blame for killing health-care reform with a "poison pill." And if they zap the Cadillac tax, they'll rip out an estimated $201 billion in revenue -- leaving "reform" unquestionably a budget-buster.

The unions can't afford to be seen as killing ObamaCare. They need to be team players so their Democratic allies will still push for other union priorities like the Employee Free Choice Act (a k a card-check).

Update (6:45 p.m.):  It does not appear the labor unions will swallow their displeasure with the bill after all:

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Posted on October 1, 2009 by EFCAreport

NLRB Petitions Supreme Court to Uphold Two-Member Board Decisions

On Tuesday, September 29, 2009, on behalf of the National Labor Relations Board, the U.S. Solicitor General petitioned the Supreme Court for certiorari in two cases which address whether the Board can continue working with three of its five seats vacant. Earlier this year, in Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, the D.C. Circuit Court of Appeals ruled that decisions issued by the “two-member Board” were invalid because the law does not permit the board to act without at least three members. This caused a split with the decisions of three other Circuits — the First, Second and Seventh — which have reached the opposite conclusion.

The Board’s petition urges the Supreme Court to resolve the split. As reported by the Associated Press, “[t]he uncertainty has thrown into question more than 400 decisions that clarified the rules of union organizing or decided whether there was merit to claims of unfair labor practices.”

While the issue proceeds toward probable Supreme Court resolution, the Board continues to act with only two members -- Democrat Chairwoman Wilma Liebman and Republican Member Peter Schaumber.  Back in April 2009, President Obama indicated that he would nominate union lawyers Craig Becker and Mark Gaston Pearce to the Board.  It was not until he announced his third intended appointee, Brian Hayes, in July that he actually officially nominated them. 

Partisan gridlock -- which emerged in the 110th Congress on this issue when these seats opened late during the Bush administration -- has continued to preclude confirmation of any appointees.  And in July, the Chamber of Commerce sent a letter to the Senate Health, Education, Labor, & Pensions Committee asking for a thorough hearing on Mr. Becker's nomination.  The Chamber asserts that Mr. Becker, a former assistant general counsel of the Service Employees International Union (SEIU), has "extreme" and "unconventional" views of the National Labor Relations Act.  Some have speculated that a Board controlled by Chairwoman Liebman, and Messrs. Becker and Pearce would pursue not only frequent reversals of Board precedent on numerous issues, but also to impose elements of the Employee Free Choice Act by administrative regulation. 

Just before the last Congressional break in August, we speculated that President Obama might make recess appointments to place these three on the Board without Senate confirmation.  With no sign of confirmation proceedings currently on deck, and the Senate's "target adjournment date" of October 9, 2009 looming, this prospect seems even more plausible.  The healthcare debate may extend the congressional calendar significantly, but in the absence of some eleventh-hour political compromise on confirmation, it seems the President will face the prospect of making recess appointments or continuing to accrue risk as the Laurel Baye case makes its way toward eventual Supreme Court resolution.

More on this issue:

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