Unions & Labor Law Reform Blog : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

Bloomberg.com reporter Holly Rosenkrantz believes things have been “looking up” for Organized Labor.  Rosenkrantz’s October 29 article cites several recent victories for Labor, including newly imposed federal tariffs on tires produced overseas for U.S. manufacturers, free trade agreements being put on hold and a potential rule change making it easier for airline workers to organize.  Despite the apparent differences among these victories, Rosenkrantz argues that there is a “common thread” linking them together — President Barack Obama. 

Rosenkrantz stated, “Organized labor is gaining momentum under the Democratic administration of President Barack Obama.”  University of California at Berkley Professor Harley Shaiken is quoted as supporting Rosenkrantz’s position, stating that “[a]fter eight years wandering in the wilderness, unions have unprecedented access to the White House.”  Further, AFL-CIO’s newly elected President, Richard Trumka, says he “meets monthly” with President Obama, and White House Spokesperson, Tommy Vietor, said Administration officials meet with labor leaders “frequently.” 

One thing is clear: after spending a record $450 million during the last election cycle, Organized Labor certainly has the “ear” of this Administration.

While she admits that Labor’s most important goals, EFCA and government-run health insurance, “remain[] in doubt,” Rosenkrantz observes that unions continue to “make[] other gains through executive orders, rule changes and appointments.”

One of this Blog’s authors, Michael J. Lotito, is quoted in the article, reminding us that despite the gains labor already has made, “[t]here is going to be a flurry of labor action down the pike.”

We welcome your thoughts.

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By a vote of 15-8, mainly along party lines, the Senate Committee on Health, Education, Labor and Pensions (“HELP”) earlier today approved the Administration’s nomination of Craig Becker to the Labor Board. The other two nominees (Mark Pearce and Brian Hayes) received unanimous votes. The Committee’s action makes it more likely all three nominations will reach a floor vote, but opposition to the Becker nomination from Senator John McCain (R-AZ), protesting the lack of a public hearing on the controversial nominee, could delay the vote.

Calling Mr. Becker the most controversial Board nominee in a long time, Senator McCain remarked on the lack of a public hearing accorded by the leadership. The Arizona Republican said that in the absence of a public hearing on the Becker nomination, he will do everything he can to block Mr. Becker’s nomination, including placing a hold on the nomination. The Senator suggested others might do the same. 

In addition to speaking during the session, Senator McCain had written to HELP Committee Chairman Tom Harkin (D-IA), expressing his concerns with the Becker nomination and asking for a hearing. Harkin responded that McCain’s threatened move could hold up all the nominations.

Senator Harkin appeared to dismiss the concerns raised by other Senators, members of the public and the business community about Mr. Becker’s positions on labor law issues. Saying he had reviewed Mr. Becker’s writings, and thought them as typical of academics stating their arguments in a provocative manner simply to prompt discussion. Defending his decision to permit Mr. Becker’s nomination to pass out of Committee without a public hearing, Senator Harkin also stated that the HELP Committee has not held a public hearing for a non-chairman nominee to the NLRB since 1980, and that he was merely following that tradition.

In a surprise to some observers, the Ranking Member on the Committee, Senator Michael Enzi (R-WY), went along with the majority on Mr. Becker's nomination. Mr. Hayes, it has been noted, is a former aide to the Senator and the nominations, thus far, have been treated as a group. Senator Lisa Murkowski (R-AK) also voted to approve Mr. Becker's nomination.

If Senator McCain or another Senator puts a hold on Mr. Becker’s nomination, a cloture vote by the Senate would be required to shut off debate and retain the nomination, but such a move also may represent the staking out of a negotiating position by an influential member. Like-minded colleagues might be persuaded to join Senator McCain in asking for greater scrutiny of the Becker nomination. Still, Senate Democrats may be able to muster the 60 votes needed to end debate and reach a confirmation vote on Mr. Becker and the others. Cloture votes usually are scheduled on a Friday to be held the following Tuesday. Therefore, absent a negotiated resolution, a cloture vote on Mr. Becker’s nomination could take place as early as  Tuesday, October 27th. 

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In a letter sent today to Senator Tom Harkin (D-IA) and Senator Michael B. Enzi (R-WY), the Chairman and Ranking Member of the Senate Committee on Health, Education, Labor & Pensions, 23 national trade and professional associations, including the HR Policy Association, the Society for Human Resource Management, and the United States Chamber of Commerce, opposed the nomination of Craig Becker to the National Labor Relations Board.  The groups told the HELP Committee leaders, “Many of the positions taken in his writings are well outside the mainstream and would disrupt years of established precedent and the delicate balance in the current labor law.”  They cited Mr. Becker’s proposed restrictions on employer free speech rights, among others, as a subject of significant concern.  The signers asked the Committee to hold public hearings in order to determine “whether his views on these issues have changed over time” and suggested a public forum also would “provide an opportunity to learn to what extent Mr. Becker will seek to apply these views in his role on the NLRB.”

The letter observes that the HELP Committee nevertheless had not scheduled such a hearing “to vet these important concerns.”  As we previously noted here, the Committee is set to consider the Becker nomination, as well as those of Mark Pearce and Brian Hayes, October 21 in executive session.  The associations’ letter states that it is not intended to express an opinion on the nominations of Messrs. Pearce and Hayes.

A copy of the associations’ letter may be accessed through this link.

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As previously reported in this space, employer groups have been asking the Senate’s Committee on Health, Education, Labor & Pensions (“HELP”) to schedule public hearings on the Administration’s nomination of Craig Becker to the National Labor Relations Board.  So far, the requests have not been answered.  The HELP Committee is slated to take up Mr. Becker’s nomination, along with those of fellow nominees Mark Pearce and Brian Hayes, in a closed-door markup session on the morning of Wednesday, October 21.  We have learned meanwhile that a number of major trade associations are writing the HELP Committee Chairman and Ranking Member opposing Becker’s nomination in light of positions he has taken in public writings on restricting employer rights and other labor relations law issues, and asking the Committee leaders to hold a full hearing on the nominee.

We are following the Board nominations closely and will keep you posted.   

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According to the Senate HELP committee's October 21st agenda, all three of the Administration's NLRB nominations will be "marked up" - acted upon- in an "Executive Session" beginning at 10:00am. 

We will keep you posted.

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Senate Committee Avoids Public Hearing, Despite Call from Employer Groups

Yesterday, the Senate Committee on Health, Education, Labor & Pensions (“HELP”) announced it had scheduled a meeting for October 21 to consider without a hearing the Administration’s three nominees to the NLRB.  The HELP Committee’s action occurred despite pleas by the U.S. Chamber of Commerce and National Trade Associations to Committee Chairman Tom Harkin (D- IA) and Ranking Member Michael B. Enzi (R- CO) that a hearing be conducted before the Committee passes on the nominations.

One of the nominees, Craig Becker, was the subject of a Wall Street Journal editorial yesterday arguing that a public hearing for Becker is needed since the “stakes are too high to let him pass without more Senate and public scrutiny.” (“Acorn’s Ally at the NLRB; Obama appoints an SEIU man with ties to Blago [former Illinois Governor Rod Blagojevich,]” WSJ, October 15, 2009).

EFCA or no EFCA, October 21, 2009, may well be remembered as the first day of so-called labor law reform.

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 With Contributions from Roger Kaplan

The Solicitor General of the United States, on behalf of the NLRB, has filed a petition with the United States Supreme Court, asking the Court to settle the dispute among the Circuit Courts as to whether the NLRB is authorized to render decisions with only two members in office.  The District of Columbia Circuit in Laurel Baye Healthcare v. NLRB this past May had held that the Board lacked such authority. Three other circuits, however, have reached an opposite conclusion (the First, Second and Seventh Circuits, in Boston, New York and Chicago, respectively). The Board in Laurel Baye, and employers in each of the other cases, petitioned the Court for a writ of certiorari to review the particular Circuit Court opinion.

The Board on September 29 asked the Court to determine whether National Labor Relations Act authorizes the agency to act when only two of its five positions are filled, if the Board previously delegated its full powers to a three-member group that included the two remaining members. On the same day, the NLRB responded to the petition in the Seventh Circuit case — New Process Steel — asking the Justices to grant review there, too, on the same issue. 

Since January 2008, the Board has been functioning with only two members, Chairman Wilma Liebman and Member Peter Schaumber. Shortly before, four members, including two recess appointments about to expire, delegated the Board’s powers to a three-member panel; when  Board membership shrank to two, the agency said the NLRA allowed it to operate in that fashion. (Despite professing to carry on its duties as usual, the two-member Board may have been hedging its bets until an undisputed quorum again is present.  Students of the agency have suggested there may have been fewer decisions, and those often are in “soft,” non-controversial cases. In a number of instances, one member or the other has suppressed disagreement with Board precedent “for institutional reasons,” we have been told.)

President Barack Obama has nominated three candidates, including Craig Becker, to fill the empty seats on the Board.  These nominees are awaiting confirmation by the Senate.

In view of the clear conflict among Circuits and the Board’s and the employers’ desire to have the quorum issue settled, not to mention the Second Circuit’s observation that the High Court will have to have the last word on this subject, many believe the Supreme Court will grant certiorari. The Court begins its new Term October 5. 

We will keep you posted.

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