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.
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.
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."
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 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."
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?
"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."
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.
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.
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.
“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.
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.
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.
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:
“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 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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
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.
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.
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.