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

Politico's Ben Smith tonight reports that Andy Sterm, President of Service Employees International Union (SEIU), one of the most powerful labor leaders and political figures in America, is resigning:

The President of an SEIU local based in Seattle, Diane Sosne, broke the news to her staffers at 11:35 this morning, local time.

"Last night I received confirmation that Andy Stern is resigning as President of SEIU. He has not yet made a public announcement; we will share the details as we become aware of them," Sosne wrote in an email obtained by POLITICO.

Sosne offered no explanation for the move, but another SEIU official speculated that Stern had finally tired of the draining job.

"Health care getting done is a good culmination," the official said.

Stern's SEIU and President Obama have a longstanding political relationship, and it was widely reported late in 2009 that Stern was the most frequent visitor to the White House during the President's first year in office.  Stern drove hard behind the recent health care reform act and the push to hold legislators accountable for their positions on the Employee Free Choice Act.  Speculation will swirl until Mr. Stern himself addresses his departure from the most politically connected labor union in the U.S.   [UPDATE: HuffPo's Sam Stein tweets: "SEIU spokesperson Michelle Ringuette: ".Stern will address these rumors at the close of the SEIU Executive Committee meeting this week."]  But without a doubt, what he does next will likely be as significant to the American labor movement as what he has done to date.

More commentary and coverage:

• "Andy Stern to Resign as SEIU President" -- The Atlantic
• "SEIU Official: Andy Stern to Resign" -- The Daily Caller
• "Report: Andy Stern to Resign" -- Time Magazine's The Page
• "Andy Stern Leaving SEIU, Sources Confirm" -- The Huffington Post

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The Labor & Employment Team at McKenna Long & Aldridge LLP is launching Labor Relations Today, a blog providing analysis, resources and commentary regarding current and emerging issues in labor and employment law. Led by MLA partners Richard B. Hankins and Seth H. Borden, the authors of EFCA Report, the new blog seeks to become the leading online community for tracking the key legislative, executive and administrative regulatory developments that will significantly impact how employers interact with their employees and labor unions.

As we have tried to do with our coverage of the Employee Free Choice Act here, we hope to keep our readers ahead of the curve with insights on traditional labor law, and the effect of changes being considered and implemented by the 111th Congress and the Obama administration.  We anticipate that the next few years will be a dynamic time in American labor law.  At LRT, we will endeavor to keep our clients and employers in general up to speed on developments as they happen -- if not sooner.

Please visit the new blog and subscribe there for updates. Alternatively, you can follow Labor Relations Today on LinkedIn, Facebook and/or Twitter. Thank you for your continued readership.

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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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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 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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The Senate Health, Education, Labor & Pensions (HELP) Committee is scheduled for an executive session tomorrow to consider pending nominations by the President.  The Hill reports today, however,  that a spokeswoman for HELP Committee Chairman Tom Harkin (D-Iowa) said the Committee will not be considering the re-nomination of Craig Becker to the NLRB this week.  Nonetheless, business groups continue to ramp up their opposition to the nomination:

“Yes, we will absolutely oppose the Becker nomination,” said Jade West, senior vice president of government relations for the National Association of Wholesaler-Distributors (NAW). “The NLRB, under the leadership of Becker, could implement the Employee Free Choice Act by fiat.”

The National Association of Manufactures (NAM) also sent a letter to the chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee opposing the nomination.

The Chamber, NAW and NAM were part of a 23-business coalition that wrote to senators last October to oppose Becker’s nomination.

Union lawyers have dismissed the business groups’ concerns in the past, saying such a board ruling would come under heavy legal challenge and only legislation changing labor law would allow the card-check process to take place.

Other commentators sympathetic to labor, however, are less dismissive.  In the Huffington Post's coverage of the nomination debate, Dmitri Iglitzin and Steven Hill write:

To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:

* drastically shorten the time frame for holding union elections;

* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;

* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;

* require equal access to both workers and the workplace for unions during campaigns; and

* increase the penalties on companies that violate their workers' legal rights.

The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.

Other commentary on the issue:

• "It's All Academic: Profs Push NLRB Nomination" -- TheTruthAboutEFCA
• "66 Academics to the Senate: Confirm Craig Becker to the NLRB Now" - FireDogLake
• Previous EFCAReport coverage here.

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The National Association of Manufacturers (NAM) has sent a letter to the Senate Committee on Health, Education, Labor & Pensions (HELP) opposing the re-nomination of SEIU Associate General Counsel Craig Becker to the National Labor Relations Board (NLRB).  President Obama re-nominated Becker recently after his nomination was returned from the Senate in late 2009.  Among NAM's many concerns about the nomination is the prospect that, following a legislative failure to enact EFCA, Mr. Becker may pursue its goals via the Board's administrative mechanisms:

Mr. Becker’s views indicate that he believes the NLRB has the authority to make certain decisions that are pending in proposed legislation. Such positions include redefining the supervisory status of frontline supervisors in order to place such employees into labor union bargaining units with other eligible employees.  Mr. Becker has written extensively and positively about how the NLRB could rewrite current union election rules in favor of union organizers, a decision that should be left to Congress. We are particularly concerned that if confirmed, Mr. Becker would seek to advance aspects of the jobs-killing Employee Free Choice Act through actions of the NLRB.

Both NAM and the U.S. Chamber of Commerce have requested Committee hearings on the nomination.

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Providing its analysis of the earlier WSJ piece, NAM's ShopFloor.org incorporates insight from other sources as well, and concludes:

And if the legislative path is blocked, there’s always the regulatory/administrative approach. As we’ve noted previously, one of President Obama’s nominees to the National Labor Relations Board is Craig Becker, an SEIU counsel who contends the NLRB can prevent employer involvement when a union seeks to organize the business. Becker is a fervent supporter of the Employee Free Choice Act and card check’s elimination of secret ballot elections.

Among the notable quotables highlighted by ShopFloor:

• Workforce Management:

“It’s kind of now or never for them,” said Brett McMahon, vice president of Miller & Long, a concrete subcontractor and a member of Associated Builders and Contractors. “If the chances are [lower] now to get something done, they may become truly impossible in the next Congress.”

• The Nation:

The battle over nominations to the NLRB, even more than EFCA, may be what really determines the extent of labor’s gains under Obama. Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB.

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Bloomberg News reports:

One part of the health-care legislation that would help control costs is a tax on so-called Cadillac insurance plans that is part of the Senate bill, she said.

As one way to pay for the changes, the Senate would impose a 40 percent tax on employer-provided insurance plans that exceed $8,500 for individuals and $23,000 for families, with higher allowances for retirees and workers in high-risk professions such as mining and firefighting.

Obama “has been convinced by experts across the ideological spectrum that this is one of those things that genuinely slows the growth rate of costs,” Romer said. “Anybody that’s worried about the budget deficit knows that we’ve got to do that.”

“The important thing is the incentive it provides to genuinely slow the growth of our costs,” she said. “We certainly have looked very hard at the CBO estimates and think they are very reasonable.”

Labor leaders, including AFL-CIO labor federation President Richard Trumka and Service Employees International Union President Andy Stern, are scheduled to meet with Obama tomorrow to discuss the tax.

One may wonder what other legislative issues might come up in discussion...

(Hat Tip:  NAM's Twitter Feed)

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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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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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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:

• "NLRB asks Supreme Court to rule on decisions by 2-member board" --PointOfLaw.com
• "NLRB Seeks Cert on Two-Member Board Issue" -- Workplace Prof Blog
• "Laurel Baye cert. petition filed by NLRB" -- NOLA Employers Blog

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If you've been following us (or Daniel Schwartz) on Twitter, you are likely aware that President Obama has named the nominee for the third and final vacant seat on the NLRB -- and has finally actually nominated the individuals he identified in April for the other two.  Brian Hayes has been tapped to join SEIU Associate General Counsel Craig Becker and Buffalo labor attorney Mark Gaston Pearce as Members of the National Labor Relations Board.  The press release issued by the White House describes Mr. Hayes as follows:

Brian Hayes, Nominee for Member of the National Labor Relations Board
Brian Hayes currently serves as the Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP).  Previously, Mr. Hayes was in private legal practice for over twenty-five years. His practice was devoted exclusively to representing management clients in all aspects of labor and employment law. He has represented employers in scores of cases before the National Labor Relations Board, the Equal Employment Opportunity Commission, and various state fair employment practice agencies. He has served as chief trial counsel in the full range of employment claims in both state and Federal courts. Mr. Hayes has extensive experience in negotiating labor contracts on behalf of management clients, as well as representing clients in arbitrations, mediations and other forms of alternative dispute resolution. He has argued a number of significant labor cases before the Federal Courts of Appeal; and regularly counseled clients regarding compliance with the full range of state and Federal labor laws including OSHA, FMLA, Title VII and the Fair Labor Standards Act. Before entering private practice, Mr. Hayes clerked for the Chief Judge of the National Labor Relations Board and thereafter served as Counsel to the Chairman of the NLRB. In addition to his private practice Mr. Hayes was a member of the adjunct faculty at Western New England Law School where he taught classes in Labor Law, Collective-Bargaining, Arbitration and Employment Litigation. He is a member of the Massachusetts and District of Columbia bars, and the American Bar Association and its Labor and Employment Law Section. Mr. Hayes earned his undergraduate degree from Boston College and his law degree from Georgetown University Law Center. 

What remains to be seen is whether or not these three gentlemen will be confirmed by the Senate -- perhaps not so coincidentally amid all the talk about the future of EFCA, and the possibility of a sympathetic Board expanding the use of card-check without legislation -- or whether the President will have to make recess appointments. 

This Labor Board is certain to reverse Board law set forth in decisions passed during previous administrations, and will do so in a manner expanding the rights of unions and workers.  We have previously reviewed many of the possibilities in posts here and here.

More on the issue:

• "Card Check and the National Labor Relations Board" -- ShopFloor.org
• "Hayes to be Republican Nominee to NLRB" -- Workplace Prof Blog 
• "Third Nomination to NLRB" -- Ross Runkel's LawMemo

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Over a month ago, on Friday, April 24, 2009, President Obama announced his intention to nominate SEIU counsel Craig Becker and union attorney Mark Pearce as Members of the National Labor Relations Board.  But since then, the White House has declined to formally nominate either.  Why the delay?  Some insight this week via Kiplinger: 

Since early 2008, the two existing board members, one Democrat and one Republican, have acted under a legal maneuver blessed by the Bush Justice Department that allowed them to issue hundreds of decisions in less controversial cases on which they agreed. But on May 1, the U.S. Court of Appeals in Washington ruled that a decision by the two members doesn't count because the board lacked a quorum. On the same day, a federal appellate court in Chicago took the opposite view, holding that a separate decision taken by the two members was appropriate and binding.

With the courts at odds, confusion reigns. Dozens of companies are going to court to challenge other rulings, but the two existing NLRB members say they will continue to issue rulings when they agree. The Washington court gave the board an easy out, saying that once a quorum is present, the board can reaffirm all of the rulings in question. But there's the rub.

Obama has announced his intention to nominate two members  -- Craig Becker, the associate general counsel to the Service Employees International Union and Mark Pearce, who has teaches labor law -- but has yet to submit the paperwork. When he does, it will take several months to win confirmation. In the meantime, the Board is in limbo, as are the companies and workers who need answers.

In addition to rubber-stamping all of the questionable two-member Board decisions, the Obama Board, headed by Chairwoman Wilma Liebman, is likely to begin overruling current law set in several areas by the fully-constituted Bush Board.  We outlined several of these issues in previous posts here and here.  While the passage quoted above suggests it might be some time before employers need to fully contemplate that, the Kiplinger piece continues:

There is another option -- a recess appointment this week. But that's the kind of move that Obama is likely to be reluctant to take because of the anger it arouses among the opposition party. Still, it may be the lesser of the evils facing the NLRB and those who depend on it.

On the one hand, President Obama must certainly be weighing the risks of enraging the GOP filibuster bloc by making a recess NLRB appointment at a time when he is seeking to have his first Supreme Court justice confirmed.  On the other, he may need to show organized labor some attention with EFCA's progress slowed and the President having been less than entirely enthusiastic about the bill in its current form.  Employers would be wise to keep an eye on this in the coming week.

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USA Today's The Oval blog just finished live-blogging President Obama's town hall meeting from New Mexico.  During the Q&A period comes the following entry:

12:55 - A man asks about the "employee free choice act," which would help more unions form. Obama praises the contribution of unions to society, and worries about the decline in union membership. But he cites objections to the "free choice" act, including the fact that it does not assure secret balloting for formation of a union. Notes there aren't enough votes in the Senate to get the act passed, but says there may be room for compromise.

This is a clarification of the President's position which differs from recent reports.  News coverage from earlier in the week was vague, at best, but suggested that Vice President Biden told AFSCME that the White House remained fully supportive of the Act.  And yesterday, American Rights at Work released its newest TV ad that suggested that President Obama was in favor of the bill as currently drafted, and not in favor of the "compromise" efforts being led by Sens. Harkin and Specter.

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In advance of Thursday's Senate Committee Hearing, yesterday we posted some of the most recently decided cases likely to be revisited by Chairwoman Liebman's National Labor Relations Board, once fully constituted.  While the initial post focused on decisions criticized during the December 2007 congressional hearing, there are additional issues likely to be reviewed by the incoming Board early in its tenure.  These include:

• IBM Corp., 341 NLRB 1288 (June 9, 2004), in which the Board returned to its precedent of not extending Weingarten rights to non-union employees.  In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the Supreme Court determined employees in unionized settings are entitled to have a union representative present at investigatory interviews conducted by employers which the employee reasonably believes could lead to discipline.  Until the decision in Epilepsy Foundation of Northeast Ohio, 331 NLRB 676 (July 10, 2000), the Board had never extended Weingarten rights to non-union employees.  Chairwoman Liebman joined with the majority in Epilepsy Foundation, and dissented in IBM Corp. 
• Sheet Metal Workers, Local 15, 346 NLRB 199 (January 9, 2006) and Laborers Eastern Regional Organizing Fund, 346 NLRB 1251 (April 28, 2006), wherein the Board addressed the issue of what constitutes "picketing."  Under the NLRA, picketing can be unlawful in certain situations, while "handbilling" is generally considered protected free speech.  In both of these cases, the Board found that unions engaged in picketing because their behavior created a physical barrier to the worksite.  These cases left open, however, the question of whether bannering by itself automatically constitutes picketing.  Bannering is a practice in which  union representatives hold a large banner in front of an employer’s facility criticizing the employer’s employment practices without actually creating a physical barrier to the employer’s facility
• Oakwood Care Center, 343 NLRB 659 (November 19, 2004), in which the Board returned to its decades old rule that prohibits the certification of "multi-employer bargaining units" without the consent of the employers involved.  It held that Section 9(b) of the NLRA prohibits the Board from recognizing a bargaining unit beyond a single employer unit.
• On February 26, 2008, the National Labor Relations Board issued a notice of proposed rules in which it proposed creating a new type of jointly-filed representation (RJ) petition that would shorten the period between the filing of a petition and the election. According to the proposed rule, the RJ petition would be filed jointly by a union and employer. It would require an election within 28 days, as opposed to the 42 days currently set as the target for a union-filed RC petition.  Also, it would not require the 30 percent showing of interest unions must present to file an RC petition.  In addition to shortening the deadline for conducting elections, an RJ petition would require the parties to cede authority to the Regional Director to resolve any pre-election disputes, meaning there would be no right to appeal to the Board.  Finally, unfair labor practice (ULP) charges would no longer block elections, but instead would be resolved in any post-election proceedings.

Finally, with congressional support for card check on the wane, organized labor may encourage its new allies on the Board to shorten the time period for elections. The current 42-day standard has been in place since 1996, when the Board set the measure pursuant to the Government Performance and Results Act. The Board appears to be free to change that standard at any time without any formal opportunity for public comment.

If eventually nominated and confirmed, as expected, Craig Becker and Mark Pearce will join Chairwoman Liebman, as a three-vote majority capable of reversing much of this case-law, and advancing other elements of a pro-labor agenda, even without legislative assistance.  Employers must plan accordingly.

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The Senate Health, Education, Labor & Pensions Committee has scheduled a hearing for Thursday, April 30, 2009 to address "Nominations Under Consideration...."  President Obama's recently announced intention to nominate two union attorneys as Members of the National Labor Relations Board may well be a topic.

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If EFCA has to wait, the White House has not wasted any time jumping head-first into other initiatives to help revive the American Labor movement. Three Executive Orders issued today by President Barack Obama alter labor relations obligations for companies that conduct business with the federal government or work on federally-funded projects.   These Executive Orders: 

(a) eliminate the requirement that federal contractors post notices advising union-represented employees of their rights not to join the union, instead requiring a notice advising employees of their right to organize;

(b) prevent contractors from using federal funds to influence workers deciding whether to form a union; and

(c) require new service contractors on federal facility contracts to offer employment to all the predecessor contractor’s employees.

Government contractors should perform an immediate review of their contracts, upcoming bids and standard procedures, and consider legal strategies for ensuring compliance. The more detailed McKenna Long & Aldridge white paper on these Executive Orders is available here.

Additional commentary:

“President Obama and Organized Labor -- Executive Orders” -- ShopFloor.org

“Labor’s Day at the White House” -- The Atlantic

“Obama Signs Series of Pro-Labor Executive Orders” -- CQ Politics

And McKenna Long & Aldridge partner Seth Borden quoted throughout this Employment Law 360 (subscription) piece “Obama Signs Labor Orders Reversing Bush Policies.”

Curiously, the Orders have not been posted on the White House’s up-to-the minute blog -- or the specific web page dedicated to Executive Orders.

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