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

Earlier today, President Obama announced that he would make recess appointments of nominees Craig Becker and Mark Gaston Pearce to the National Labor Relations Board.  CNN reports that White House deputy communications director Jen Psaki highlighted these appointments:

"The roadblocks we've seen in the Senate have left some government agencies like the National Labor Relations Board and the Equal Employment Opportunity Commission impaired in fulfilling their mission," Psaki wrote. "These agencies can now get back to working for the American people."

The National Labor Relations Board issued a press release announcing the moves as well::

President Barack Obama today announced the recess appointments of attorneys Craig Becker and Mark Gaston Pearce to fill two vacancies on the National Labor Relations Board.

NLRB Chairman Wilma Liebman, who has served on the Board for 12 years, welcomed the new members saying, “I look forward to beginning work with them, and especially to addressing cases that have been pending for a long time.” Three of the Board’s five seats have been vacant since January 2008. The two remaining members – Chairman Liebman and Member Peter Schaumber – have issued decisions in nearly 600 cases in which they have been able to agree. Last week, the Supreme Court heard argument in a case challenging the Board’s authority to have issued decisions with two members.

The appointment of Becker, a former Associate General Counsel for the AFL-CIO and SEIU, has been the source of much controversy.  Back in February. Democratic Senators failed to break a filibuster on Mr. Becker's nomination --with both Republicans and Democrats voting against cloture.  Republicans immediately siezed on this point tonight as Democrats attempted to paint the President's moves as necessary response to GOP obstructionism:

"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," said U.S. Senate Minority Leader Mitch McConnell. "This is a purely partisan move that will make a traditionally bipartisan labor board an unbalanced agenda-driven panel."

Moreover, President Obama had nominated three potential members to the Board -- Messrs. Becker and Pearce, and Republican Brian Hayes.   The Senate failed to confirm any of them, although business groups and Republicans made clear that they had no opposition to Pearce and Hayes.  Yet, the President chose today to appoint only Becker and Pearce -- leaving open a fifth spot which has been vacant since December 2007.

More commentary:

• "Obama Uses Recess Appointments To Fill 15 Posts" -- Washington Post
• "A Few Other Notes About Recess Appointments to the NLRB" -- ShopFloor.org
• "Senate Gone, Obama Seats Nominees" -- Politico
• "U.S. Chamber: Becker Appointment 'Contradicts' President's Pledge to Change Washington" -- The Hill's Blog Briefing Room

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For the better part of the past twenty-eight months NLRB Member Peter Schaumber has worked with Chairman Wilma Liebman while the National Labor Relations Board has been operating with only two of its five positions filled.  This week, the U.S. Supreme Court heard oral argument in New Process Steel v. NLRB, Docket No. 08-1457, to pass upon the issue of whether the hundreds of decisions handed down by the two-member Board are legitimate. 

Last week, we attended a breakfast hosted by the Atlanta Bar Association Labor & Employment Section, at which Member Schaumber spoke about the two-member issue.  In his remarks, Member Schaumber indicated that he and Chairman LIebman had handed down approximately 600 decisions since December 2007.  While a majority of them are now beyond the compliance stage, he indicated that the Supreme Court's decision may impact approximately 80-100 cases -- most of which involve employer challenges.  Member Schaumber would not comment on whether the Board had a plan to deal with these cases if the Supreme Court invalidates the two-member Board decisions.   

Today, the NLRB issued a press release reiterating some of Member Schaumber's remarks at the ABA Labor & Employment Law Section's Mid-Winter Meeting on March 3 in Puerto Rico.  At that conference, Member Schaumber indicated his concern with “the possibility of an upcoming wholesale reversal of Bush Board precedent,” which could “reignite and intensify the negative view of the NLRB as mired in partisanship.”

We've previously outlined a number of the most obvious decisions on which a fully-constituted Liebman Board is likely to reverse course.  Many question whether we are only a few days away from that full Board, as President Obama may well be considering making recess appointments during the congressional recess beginning this weekend.

Member Schaumber suggested labor law reforms intended to mitigate the view of partisanship and the frequency of precedent reversal during successive Presidential administrations:

He said U.S. labor laws are in need of reform but suggested changes that are not now being discussed, “from the manner in which Board members are selected to the possible role of work councils to whether consideration should be given to abolishing the Board all together in favor of a Federal labor and employment court with judges appointed for life.”

While these notions have not gathered much traction in the discussion about reforming American labor law -- in part, because there has been no discussion -- Senator Arlen Specter posed similar questions in his 2007 Harvard Journal of Legislation Policy Essay:

Has the Board appropriately balanced a sparing use of rulemaking authority and heavy reliance on adjudication?  Would the Board gain legitimacy if Board Members were more insulated from the political appointment process, perhaps through longer terms or a different appointment process? What other institutional reforms would both encourage and empower Members to act more like judges and less like political appointees? 

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While the ongoing wrangling over healthcare legislation remains the major topic of the day, a few items regarding EFCA have found their way into the news cycle recently.

Senator Blanche Lincoln (D-AR), one of the most prominent Democrat critics of EFCA, is facing a primary challenge in her 2010 re-election bid.  Her challenger, Lt. Governor Bill Halter* (D) is receiving substantial support in his primary effort from the S.E.I.U. and other labor unions.  In a television ad released early this week, Senator Lincoln responds to an earlier spot by Halter, and directly takes on the issue of his union support:

(*Lest anyone miss the irony that a Senator viewed as having stopped EFCA in its tracks is running against someone named "Bill Halter," student columnist Daniel Clutchey cleverly noted it in this recent HuffPo hit piece.)

On the other hand, this week, Senator Arlen Specter (D-PA), another famous EFCA critic, received the endorsement of the S.E.I.U. in his primary contest against challenger Rep. Joe Sestak (D-PA).   In a recent endorsement, Bill George, the head of the Pennsylvania AFL-CIO also stated regarding EFCA:

That first bill’s gone and consequently, it’s time to move forward. And Arlen Specter was very instrumental with other Senators getting an agreement.

This curious statement caused NAM's ShopFloor.org astutely to ask:

What agreement?

We’ve heard a lot of discussion about a possible alternative-EFCA bill, but any proposal based on the fundamentally flawed EFCA would be devastating to employers and employees alike. If an agreement has been reached, why is nothing is available on it?

Back in September 2009, Senator Specter told the AFL-CIO that the Senate would pass a bill providing for quicker elections, mandatory interest arbitration and increased penalties against employers.  On the heels of Specter's announcement, however, Senate Democrats quickly distanced themselves from the notion that any such alternative proposal had been finalized.  Mr. George's recent proclamation may raise these questions once again.

Ironically, one year ago, while EFCA was still newly stalled in the Senate, it was Rep. Sestak who introduced alternative legislation, H.R. 1355, the National Labor Relations Modernization Act -- which would provide mandatory arbtiration, increased penalties, and equal access to employees for unions prior to elections. 

Finally, in today's IndustryWeek, Jonathan Katz asks "Is EFCA's Time Now?": 

"Typically in an election year, landmark legislation does not get passed, because the congressmen and women are more concerned about holding seats than they are necessarily about putting their reputations on the line over controversial legislation," DRI's [Reggie] Belcher says. "And EFCA is going to be controversial."

If the bill sees the light of day, it likely will be in a "watered-down form" that, for example, eliminates the card-check provision but shortens the current 42-day time period for secret-ballot elections to take place, Belcher predicts.

"That would be one way EFCA could be changed while still making union organizing easier," Belcher says. "And I think that is one of the goals of the Obama administration."

A companion piece "Obama Administration Pushing Its Labor Agenda -- EFCA or No EFCA" outlines many of the other efforts by the White House to transform American labor law.

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Online today, NPR carries a piece from the New Republic's John B. Judis entitled "Obama's Hinge Moment."  It is a partisan piece, but generally accurate in the facts the author includes.  His argument: President Obama should recess appoint Craig Becker to the National Labor Relations Board to embolden labor unions.  In describing the prolonged history of Mr. Becker's stalled nomination, Mr. Judis reports:

In his responses [to HELP Committee questions], Becker dealt satisfactorily with the principal charge against him — that he would use the NLRB to administratively enact the Employee Free Choice Act. (The measure, which labor has been unable to get through Congress, would make it easier for unions to organize workplaces.) Becker said explicitly that he would not.

Yet, Mr. Judis notes that only 52 Senators voted to invoke cloture, failing to end a filibuster on confirmation of Mr. Becker's nomination; and, during the February Congressional Recess, President Obama declined to make recess appointments.  His suggestion: 

The administration has another chance to act during the Easter recess from March 29 to April 11. Jon Hiatt, chief of staff to AFL-CIO President Richard Trumka, says his union has a "strong belief" that Obama will act then. But other labor officials, who didn't want to speak for attribution, are far less certain of the outcome. Obama's failure to make the recess appointment in February has only added to their unhappiness with the administration, which began when Obama endorsed an excise tax on the generous health insurance plans that unions have won for their members — after he had pledged during the campaign to oppose such a tax and attacked McCain for favoring one. Trumka has told several people the story of how, when he went to the White House to discuss the health care bill, the president told him that, if he was not willing to accept the excise tax, there could be no discussion. Says one person who has worked closely with the AFL-CIO and its unions, "People are starting to think it is not just Rahm Emanuel."

At the end of this month, Obama will have a chance to prove these critics wrong. It would certainly be the politically smart thing to do. Labor remains essential to the Democratic coalition, and, given that Obama cannot offer unions what they really want — the Employee Free Choice Act — he can at least mollify them with this. More than a shrewd political move, however, filling the vacancies on the NLRB is the right thing to do. It is a small agency but an important one. And, as long as it remains crippled, one of the core philosophical commitments of the Democratic Party — the idea that workers ought to have some counterweight to the overwhelming power of big business — goes unfulfilled.

As indicated in the piece, the next Congressional Recess begins March 29, 2010.

(Hat tip:  ShopFloor.org)

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The Wall Street Journal’s Kris Maher and other sources report that Vice President Joe Biden told attendees of the AFL-CIO annual winter meeting that there is still hope for the Employee Free Choice Act and a union-friendly National Labor Relations Board.

“I know it doesn’t seem like it, but we’ve come a long way in 12 months,” Biden told several hundred union officials. “In terms of the NLRB, we’re going to get it done. In the fight for EFCA, we’ve got to sit down and figure out where we go from here…. I think we’re going to get it done.

Reporting on the same speech, Michelle Amber of the BNA Daily Labor Report (subscription required), writes that the Vice President acknowledged that there was some disappointment among labor leaders. But he described the friction as “tactical differences."

Biden said the administration has not gotten “it done in terms of the NLRB,” adding, “but we are going to get it done.” Biden, however, did not elaborate.

Regarding EFCA, Ms. Amber notes that Vice President Biden told the group that the administration needs “’to figure out a strategy’ on how to get it passed.”

Mr. Biden’s audience was reportedly less enthusiastic than it was a year ago. According to Mr. Maher:

Ahead of this year’s meeting, some union presidents suggested the mood would be more contentious once union leaders had a chance to question the vice president in a closed-door session.

 

“I think they owe some answers this time,” said Thomas Buffenbarger, president of the International Association of Machinists. “There’s always something that crops up and gets in the way of labor’s agenda.”

Despite the friction, labor leaders were apparently still supportive of the administration. From the WSJ:

“The labor movement is a long way from throwing the president under the bus,” said John Gage, president of the American Federation of Government Employees. “I think we had exaggerated hopes for the Obama administration, and people are taking an objective look at where we are.”

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