Labor Relations Today : Labor & Employment Lawyers & Attorneys : Contract Administration, Collective Bargaining

MLA attorneys Richard Hankins and Seth Borden co-authored a piece in today's Bloomberg Law Reports entitled "Key Remedial Elements of the Employee Free Choice Act That May Be Implemented Without Legislation."  The piece explores the likelihood of a fully-constituted National Labor Relations Board pursuing an expansion of its recent approaches to injunctive relief, civil penalties, Gissel bargaining orders, and "first contract" remedies.   The conclusion:

...EFCA proponents have argued that the extraordinary remedies discussed in this article are rarely sought by the NLRB. To date, this has largely been true. However, the NLRB has historically suffered from very tight budgetary constraints. Moreover, many would have argued that the politicization of the Board has led the agency to proceed less aggressively during Republican administrations. Those circumstances are now undergoing significant change, with increased funding from the Obama administration, and soon possibly a Board majority more sympathetic to organized labor. This new majority bloc will undoubtedly pursue expansions of all of the remedial options described above – regardless of whether or not EFCA is ultimately passed into law.

You can read the entire piece here.

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Ben Smith writes in Politico of EFCA and other legislative initiatives, "Issues tabled, left still professes hope":

The Obama White House has, through administrative action, done much to satisfy groups of supporters. The president has made record-breaking numbers of senior Hispanic appointments, for instance, and reinvigorated the agency that regulates workplace safety, a labor priority.

But legislation is another story. The Employee Free Choice Act didn't even get a mention in the State of the Union, though Obama technically supports it. Senate Democrats like Blanche Lincoln of Arkansas have appeared to bend to fierce local pressure to oppose it. Still, the unions fight on: The act is "still one of our top priorities," said AFL-CIO spokesman Eddie Vale. "[We] still think it can be done."

The union is continuing to push the legislation with state events, asking members to call and write Congress and lobbying legislators and making the case that stronger unions are part of a stronger economy.

Their allies in maintaining what is widely viewed on Capitol Hill as a fiction — that the bill has even the slimmest chance of passage this year — are the half-dozen groups spawned by the business community to fight it, whose own viability depends on their constituents' alarm.

"We can't put anything past the union bosses. They have invested half a billion dollars in the current leadership and expect a return and have said as much," said Danny Diaz, a spokesman for the Workforce Fairness Institute.

It is an approach about which Slate's Mickey Kaus tweeted:  "Now $-raising kabuki on both sides"

But in "Where There's a Bill, There's a Way," TheTruthAboutTheEFCA blog opines that labor has invested too much capital "to walk away without anything they can claim as a victory and it’s clear they are still discussing methods of attaching EFCA language to other bills."

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As the Senate Recess begins, observers continue to speculate whether President Obama will use recess appointments to place nominee Craig Becker on the National Labor Relations Board.  Last week, Becker's nomination stalled in the Senate when a motion for cloture failed 52-33.  Later in the week, the President strongly suggested that he would not be using recess appointments at this time.  In an opinion piece in today's Politico, University of Texas Professor William E. Forbath asserts that Becker should be confirmed:

Cautious Democrats are urging the White House against making a recess appointment of Craig Becker to the National Labor Relations Board. But these timid Democrats are wrong.

Many argue that the fallout from a Becker appointment would be self-defeating for labor because it would end any chance of getting the Employee Free Choice Act through the Senate. But the EFCA died when Sen. Scott Brown (R-Mass.) took his seat, if it wasn’t dead already. The EFCA won’t pass unless and until the filibuster rules are changed. And then, the Becker appointment won’t matter.

At Human Events, the Heritage Foundation's Brian Darling argues against the use of recess appointments:

A recess appointment can be made to put a nominee into a position temporarily, usually for a year or so, when the Senate is out of session. Many Democrat Leaders in the Senate vigorously opposed President George W. Bush’s use of recess appointments, but now support Obama’s stated intent to use recess appointment authority.

One of the questionable nominees is Craig Becker (for the National Labor Relations Board). Becker was blocked last week by the Senate because many are concerned about his views on the Executive Branch’s power to implement big labor’s agenda without legislation. 

But as noted above, over the weekend, Sam Stein reported in the Huffington Post that the President would not appoint Becker by recess appointment:

Among those on the losing end of the deal struck between Obama and Senate Minority Leader Mitch McConnell (R-Ky.) are labor unions.  Craig Becker, the president's nominee for the National Labor Relations Board who was filibustered by the Senate this past week, will not get the recess appointment next week that union officials were hoping. Instead, his nomination is either dead or put on hold until the next Senate recess at the end of March.

Elsewhere in the Huffington Post, Bill Lucey had a great piece chronicling the historical use of recess appointments by Presidents, "Examining the 'Recess of the Senate'".

More on this issue:

• "White House: No Recess Appointments During Next Week's Break" -- ShopFloor.org
• "Obama’s Love of Labor Makes for One Unholy Union: Kevin Hassett" -- BusinessWeek
• "Recess Posting Possible" -- Wall Street Journal

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The morning after the cloture vote failed on the nomination of Craig Becker to the National Labor Relations Board, harsh observations regarding EFCA's prospects from Washington Post columnist Harold Meyerson: "Under Obama, labor should have made more progress".  Calling the Obama administration's first year an "unmitigated disaster" for labor, Meyerson writes:

For the unions, the Senate's inability to pass EFCA is devastating and galling. Democratic senators had developed a compromise proposal that would have jettisoned the controversial "card check" process -- by which unions could be organized without a secret ballot -- in favor of expediting the election process (so that management couldn't delay for months, or even years, employees' votes on whether to unionize) and stiffening the penalties for violating the rules that govern election conduct.

The compromise had a shot at winning all 60 Democratic votes. The unions, which spent more than $300 million in the 2008 elections on Democrats' behalf, wanted a vote on EFCA last year, but Obama and Senate Majority Leader Harry Reid asked them to wait until health reform had passed. (Their requests for confirmation votes on NLRB appointees were similarly delayed.)

By my count, this marks the fourth time in the past half-century that labor's efforts to strengthen workers' ability to organize have been deferred by the Democratic presidents and the heavily Democratic Congresses they supported. In 1965, about the only piece of Great Society legislation not enacted was the repeal of the Taft-Hartley Act provision that gave states the power to block unions from claiming as members all the employees in workplaces where they had won contracts. In 1979, as American management was beginning to invest heavily in union-busting endeavors, the first effort to reform labor law failed to win cloture in the Senate by one vote as President Jimmy Carter stood idly by. In 1994, President Bill Clinton responded to a similar labor-backed effort by appointing a commission to recommend changes in labor law to the next Congress -- which turned out to be run by Newt Gingrich. And last year, by asking his labor supporters to wait, Obama ensured -- unintentionally, of course -- that the next effort to revive organizing must wait until the next overwhelmingly Democratic Congress.

With the recess appointment of Becker still a viable option for the White House, the President's ability to issue Executive Orders, and the possibility of additional discussions regarding an alternative EFCA bill, it certainly might not yet be as final as that.

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The Senate has posted the roll call on the Becker cloture vote here. 

Let the political speculation begin.  What impact did the snow and the shutdown have?  What impact did Senator Nelson's proclamation have on participation?

These Senators did not cast a vote:

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The NAM_Shopfloor and Senatus twitter feeds are reporting, and media outlets are confirming, that the cloture motion to end debate on Craig Becker's nomination to the National Labor Relations Board has failed by a 52-33 margin.  As everyone seems to know nowadays, 60 votes are required to end a filibuster.

Observes NAM:  "Even with snow, a little surprised at small vote."

Boston's WBZ-TV's website notes:

The task for Democratic leaders turned more difficult when at least two Democrats joined Republicans in opposing the lawyer.

Nebraska Senator Ben Nelson was one such Senator, consistent with reports last night.  Politico reports that Sen. Blanche Lincoln (D-AR) also voted against cloture.

What now?   A recess appointment of Mr. Becker by President Obama remains a politically charged possibility.  A recess appointment made soon would serve until the conclusion of the next Senate session in late 2011. 

More commentary:

• "Becker Labor Board Nomination Held Up After Senate Cloture Vote" -- BusinessWeek
• "Obama Warns GOP He Will Use Recess Appointments" -- Huffington Post
• "Craig Becker Nomination Defeated as Cloture Vote Fails" -- FireDogLake
• "AFL-CIO Goes After Nelson For 'Hypocrisy' On Becker Nomination" -- The Hill 
• "Senate Prevents Confirmation Of Controversial Labor Nominee" -- ShopFloor.org

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In advance of a probable filibuster (with growing support) over Craig Becker's nomination to the National Labor Relations Board, Glen Spencer of the U.S. Chamber's Workforce Freedom Initiative and former Clinton-Gore advisor Peter Mirijanian swapped commentary on Fox News earlier today:

The anchor led with the angle that concerns have been raised about Mr. Becker's ability to implement elements of EFCA via administrative action. Challenged by the anchor, Mr. Spencer conceded "it would be difficult to get some of the ideas in the card check bill through administratively, but there's no question, I think, that Mr. Becker would try." In a wide-ranging defense of Mr. Becker's nomination, Mr. Mirijanian dismissed opposition as "politics" and suggested that Mr. Becker would not be able to impose EFCA by "administrative fiat."

As of right now, weather permitting, the Senate intends to take up the vote at around 5 p.m. today.

More commentary:

• "Nelson Joins GOP In Opposition to Obama Nominee" -- CNN Political Ticker
• "Senate Dem Nelson Joins Republican Filibsuter Against Obama's NLRB Choice" -- AFL-CIO blog
• "Ben Nelson to Filibuster Key Obama Labor Nominee" -- Huffington Post
• "Sen. Nelson (D-NE) Will Vote Against Cloture on Becker" -- ShopFloor.org
• "With Nelson, GOP Blocks Obama Labor Board Nominee" -- ABC News
• "Senate Votes Today On SEIU Lawyer For NLRB" -- Human Events
• "Blue Dogs Running For Cover Over NLRB Nominee" -- American Thinker

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Politico reports Monday night that Sen. Ben Nelson (D-Neb.) will support a Republican-led filibuster over President Barack Obama's nomination of Craig Becker to serve on the National Labor Relations Board:

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement. “This is of great concern, considering that the board’s main responsibility is to resolve labor disputes with an even and impartial hand."

We have previously posted on concerns expressed by many that Mr. Becker might seek to implement elements of EFCA via Board decisions and/or rulemaking.  Tonight's Politico piece notes another EFCA connection:

Republicans have tried to make Becker's nomination a referendum on the Employee Free Choice Act, which would make it easier to unionize. In his statement, Nelson said Becker has made several statements that "fly in the face of Nebraska’s Right to Work laws."

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As prospects for Senate passage of the Employee Free Choice Act, in its current form, have waned, observers have turned their attention to alternative ways in which the bill's components might be implemented.  The possibility attracting the most commentary lately has been the prospect of a new National Labor Relations Board majority, sympathetic to organized labor, using its administrative authority to enforce elements of EFCA. 

A piece in yesterday's Las Vegas Sun, however, suggests another possibility -- that some aspects of EFCA might be tucked into the Obama administration's "jobs bill" currently being developed by the Senate:

On labor law, Bill Samuel, the AFL-CIO’s legislative director, said the union would try to enlist moderate Republicans but acknowledged the difficulty of achieving a bipartisan bill. He said the federation might consider “other tactics,” meaning the card-check legislation or key parts of it could be placed into a larger jobs bill this year.

Democrat Sen. Tom Harkin of Iowa, chairman of the Senate Labor Committee, suggested that was the bill’s fate. “Maybe it won’t be card check,” he said, referring to the full bill. “But there are some things we need to do to straighten out the process for (union) elections and certification and first contract.”

Given the apparent unpopularity of card check among current Republican and moderate Democratic Senators, it is hard to see how adding those provisions advances a jobs bill purportedly intended to have bipartisan support.   We suppose we will see whether any of EFCA's other provisions find their way into the jobs bill when it is introduced -- perhaps as early as this week, weather permitting.

More commentary:

• "Jobs Bill Could Contain Card Check" -- Hot Air
• "U.S. Chamber Chief Warns Against Attaching EFCA to Jobs Bill" -- Workforce Management
• "Obama May Try To Get Card Check Through In Jobs Bill" -- Credibly Connect

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