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

An article in the February 11th edition of The Wall Street Journal quotes a number of Union leaders calling for President Obama to seat Craig Becker as a member of the National Labor Relations Board as a “recess appointment” despite the fact that, earlier this week, the Becker nomination failed to garner the 60 votes needed to overcome a filibuster. 

Service Employees International Union (SEIU) President Andy Stern said, “I think [Craig Becker] should be appointed.  I think a majority should rule here, and I hope the [P]resident takes it under strong consideration.”  Leo Gerard, President of the United Steelworkers Union, also asked for a recess appointment of Becker.

President Obama has not indicated whether he would appoint Becker while Congress was in recess.

We will let you know as soon as we hear anything new.

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As expected, the Senate Democratic majority failed to muster the votes necessary to invoke cloture on the nomination of Craig Becker to the NLRB yesterday. The U.S. Chamber of Commerce’s release below provides additional details as well as three possible directions this might take.

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TO:     All Members of the U.S. Chamber’s Labor Relations Committee and other interested members of the business community

We wanted to take a minute and update you on the status of the nomination of Craig Becker to the NLRB.

A few minutes ago, the Senate voted against cloture, which means they will not now proceed to a confirmation vote (the vote was 52-33, with 60 required to move forward; Democrats Lincoln (AR) and Nelson (NE) joined all Republicans voting in opposing the motion). As you know by now the Chamber opposed this nomination, and we thank those of you who helped in this effort.

There are several possibilities on where things move from here and we wanted to lay them out for you.

First, the failure to reach 60 votes on this cloture motion is not, by itself, fatal to the nomination. Sen. Reid could file another cloture petition at any time and seek another vote. However, the bipartisan vote in opposition is a sign that it will be very difficult for Mr. Becker to be confirmed at this time.

Second, the President could exercise his authority to make one or more recess appointments to the NLRB during the next Senate recess (scheduled around President’s day). Today, during a news conference, the President indicated that he would seek to make his first recess appointments during the upcoming recess, but he did not specifically mention the NLRB. If he chooses this route, a recess nominee could remain in place until the end of the next session of Congress, or December 2011. He could theoretically make a recess appointment of Mr. Becker, though he might also choose another individual so that Mr. Becker does not build up a record at the NLRB that could be criticized.

Third, Mr. Becker could withdraw and another nominee could be nominated.

At this point it is unclear what the next course of action is. The political dynamics will change if either of the later options is exercised and they will change regardless as time moves forward and we come closer to the expiration of Board Member Schaumber’s term (in July) and General Counsel Meisburg’s term (in August). The Supreme Court is also expected to definitively settle the question of whether a two-member board can issue decisions this spring.

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With the Administration’s nomination of Craig Becker for a seat on the National Labor Relations Board set for a cloture vote in the Senate today, Nebraska’s Democratic Senator Ben Nelson has announced he will join with Republicans in opposing the Senate leadership’s motion to cut off debate on Becker.  Cloture would clear the way for a vote on the nomination itself.  A vote for cloture already was viewed as unlikely following the Democrats’ loss of a 60-member “supermajority” in the upper house with the surprise election in January of Republican Scott Brown in Massachusetts.  Brown took his seat last week.  With Nelson entering the ranks of the opposition, the likelihood of cloture grows dimmer still.

Speculation about Nelson’s motives swirls around his defection from Democratic ranks on the controversial nomination.  Some contend that he made the move to appease his conservative constituents, angered over his backing the Democrats’ healthcare overhaul, compounded by accusations of deal-making to garner his support.  Judging that Becker’s nomination was in trouble and that the Democrats could not muster enough votes to prevent a filibuster anyway, they say, he may feel it was an opportune moment to demonstrate his independence from party-line voting and re-establish his credentials with right-leaning Nebraska voters.  Whatever his reasons, however, it remains to be seen whether Nelson’s step will prompt other conservative Senate Democrats to buck their leadership.

However matters may go in the Senate, the President still might try to place Becker on the Board through a recess appointment, when the opportunity presents itself.  This may depend on how much pressure organized labor – and Becker’s champion, SEIU boss Andrew Stern, in particular – may exert on the Administration for this candidate.  There may be considerable political risks for the Democrats in trying this end-run.

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This article was written by Tom Walsh, a partner in our White Plains, NY office.

The specter of EFCA may seem to be fading as support dwindles for the more controversial aspects of the Administration’s agenda. But don’t count out the pro-union reform forces yet. Not by a long shot.  Much has been said of the Craig Becker nomination – still a possibility either by formal confirmation or recess appointment – and the probability that a Becker-Liebman dominated NLRB could implement pieces of EFCA-style reform through Board decisions. But that’s not the only iron labor has in the fire.

The federal government’s ability to set rules for federal contractors gives it tremendous power to affect the employment and labor relations policies of such employers – without the pesky scrutiny that legislation attracts. Unions have long been aware of this, and have sought to tap into that power for years.

The news is that the Administration (encouraged by SEIU’s Andrew Stern, a frequent White House guest) is readying a new contracting initiative that would give a preference to unionized companies.  Conversely, non-union would-be government contractors would be at a real disadvantage.

For generations, public contracts have been awarded to the lowest-bidding contractor capable of performing the work. To protect contractors’ employees from being squeezed by the competitive bidding rule, Congress enacted the Service Contract Act and the Davis Bacon Act (among others). Under these laws, the Department of Labor analyzes regional wages and benefits, and sets the prevailing wage contractors must pay.

While this system has worked pretty well, it has not completely pleased unions. The prevailing wage rate often is lower than inflated union contracts. That means unionized employers can’t compete as readily against non-union companies (and unionized employees lose work opportunities).

Labor and the White House are reportedly contemplating new rules – which have not yet been made public – to give unionized employers an advantage. Called the “High Road Contracting Policy,” it would require the DOL (and all federal agencies) to create new bureaucracies to assess the labor-friendliness of bidding contractors. “Prevailing wage” would be supplemented with standards of a “living” wage, health insurance, employer-paid retirement benefits, paid sick days, and possibly more. Agency officials would give a subjective preference to contractors, providing these higher levels of compensation.  Applying these standards to those of area union contracts would instantly benefit union contractors.

But the potential new rules go further.  Employers who have been found to have violated labor laws would be restricted (or possibly barred) from being awarded federal contracts. 

Ironically, these contemplated rules seem likely to encourage federal agencies to award contracts to the highest bidder, not the lowest, contrary to the object of competitive bidding.

The good news is that some Senators have taken note and have raised concerns. They say, correctly, that the “High Road” rules would dramatically increase the cost of public work to taxpayers. They note that smaller companies (and, although unstated, non-union contractors) would be pushed out of competition.  They’ve asked the Office of Management and Budget to address their concerns. No reply has been received yet.

We will keep you posted on developments.

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As expected, the Senate HELP Committee has approved the nomination of Craig Becker to the NLRB on a party line vote. The U.S. Chamber of Commerce’s release below provides additional details.

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TO:   Members of the U.S. Chamber’s Labor Relations Committee and other interested members of the business community

As scheduled the Committee on Health, Education, Labor, and Pensions held a hearing on Tuesday on the nomination of Craig Becker to the National Labor Relations Board (NLRB). Today it voted to approve the nomination on a party line vote of 13 to 10. It is expected that one or more Senators may try to place a “hold” on the nomination, but as you may know a hold can be overcome through a cloture vote (requiring 60 votes).

When we alerted you to this last week, we noted that we were especially concerned that Senate leadership might try to move this nomination to the Senate floor before Sen.-Elect Scott Brown (R-MA) could be sworn in, which was expected on Feb. 11. Until Sen.-Elect Brown is sworn in, Democrats enjoy a 60 vote majority and thus, if they are all united, can break any Republican filibuster or hold.

However, all signs now indicate that Sen.-Elect Brown will be sworn in today.

At this point, we still expect Senate leadership to attempt to force a vote on Mr. Becker’s nomination for early next week. We understand that the original plan was for Majority Leader Reid to file a cloture petition on the Becker nomination on Friday, with a vote scheduled for the afternoon of Monday, February 8.

We do not know where all the votes stand on the cloture, but we are in a better position today than we have been previously, and there is a real chance that this nomination can be blocked. In addition to having Sen. Brown in place (and we should note that we do not know for sure how he intends to vote, but the chances of him voting with the business community are greater than the chances of his predecessor), we also have Sen. Enzi (R-AK) and Sen. Murkowski (R-AK) who have now voted against the nomination in today’s committee consideration (you may recall that they both supported a package of NLRB nominees last year that included Becker).

However, to be successful, we need to continue to communicate with key Senators to ensure that they realize the importance of opposing this nomination. We have activated our grassroots network with tremendous success (more than 25,000 contacts to the Hill so far) and would encourage those of you who are able to do the same.

A list of key Senators follows:

Democrats

Bayh (IN)

Bennet (CO) (supported Becker in Committee, but should still hear from business)

Landrieu (LA)

Lincoln (AR)

Ben Nelson (NE)

Pryor (AR)

Warner (VA)

Webb (VA)

Republicans

Brown (MA)

Collins (ME)

Enzi (WY) (voted against Becker in Committee, deserves thanks)

Murkowski (AK) (voted against Becker in Committee, but did so by proxy, so reinforcement would be helpful)

Snowe (ME)

Voinovich (OH)

Also, you may be interested in the Chamber’s latest letter in opposition to the nomination, which can be accessed here:

http://www.uschamber.com/issues/letters/2010/100204becker.htm

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Senator Orrin Hatch’s (R-Utah) opening remarks on the first day of Senate HELP Committee hearings on the nomination of Craig Becker to the NLRB, available here, contained a salvo of questions probing the nominee’s controversial positions on key labor relations law issues, such as his view that employers should have no right express their views to employees in union representation elections.   

After pointing out some of Becker’s more polemical writings, the Senator said skeptically, “[M]ost importantly, [Mr. Becker] should explain how productive a board member he can be when he is required for at least one year, and possibly longer, to recues himself under the government ethics rules from cases involving the AFL-CIO and the SEIU, when he continues to be employed by both.” 

Senator Hatch, long an outspoken legislator on national labor and employment law issues, along with Senate HELP Committee Chairman Senator Tom Harkin (D-Iowa) will be the keynote speakers at Jackson Lewis’ Corporate Counsel Conference on May 13 in Washington D.C.

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