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

The U.S. Senate has unanimously confirmed both Mark Gaston Pearce and Brian Hayes to serve as members of the National Labor Relations Board.  This brings the membership at the Board from four to five for the first time since 2007.   

Mr. Pearce has already been serving as a member of the NLRB since April 2010, when he received a recess appointment from President Barack Obama.  Mr. Hayes, a Republican nominee who did not receive a recess appointment from President Obama, joins the Board as its fifth and final member. 

The current composition of the Board therefore is as follows:

1)      Chairman Wilma Liebman (confirmed through August 2011)

2)      Member Peter C. Schaumber (confirmed through August 2010)

3)      Member Craig Becker (serving a recess appointment that expires at the end of 2011)

4)      Member Brian Hayes (confirmed through December 2012)

5)      Member Mark Gaston Pearce (confirmed through August 2013)

Craig Becker, who was given a recess appointment in April, along with Mr. Pearce, was not confirmed in the June 22 Senate action. His nomination for a full term is still pending.  This means Mr. Becker can continue to serve on the Board only until the end of 2011.  Furthermore, Member Schaumber’s term will expire in about two months.  This will leave another vacancy on the Board to be filled by President Obama.  We will keep you posted with any updates on Mr. Schaumber’s replacement.

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Senators Orrin Hatch and Tom Harkin, members of the Senate Health, Education, Labor and Pensions Committee, spoke at the 20^th Jackson Lewis Corporate Counsel Conference in Washington, D.C. on May 13. Senator Harkin said at an IAM conference held a few days before that EFCA was his top priority.  We asked Senator Hatch during our breakfast for 225 in-house counsels if Senator Harkin had the votes to make his priority a reality. Senator Hatch’s response was “no.”

Later, over lunch, Senator Harkin agreed with Senator Hatch that the votes for EFCA are simply not there. His candid admission clearly disputes Richard Trumka’s prediction that EFCA would pass if attached to some other piece of legislation.

Nonetheless, as we pointed out at a labor relations break-out session, labor law reform comes in many shapes and sizes. Executive orders, restrictive state laws, provisions of government contracts, new interpretations of well-established rules and regulations, reversal of precedent and potential rulemaking all make for a challenging environment.

Senator Hatch reminded us that unions spent $1 billion in the last election cycle. What does a billion dollars buy? As much as labor can get.

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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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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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Immediate action called for by the U.S. Chamber of Commerce in connection with the Becker nomination to the NLRB. See Chamber’s release below.  Additional information about the possible impact of this appointment will be found in several recent Jackson Lewis EFCA and Labor Law Reform blog. If you would like to discuss the significance of this development or have any questions please call Mike Lotito, Marty Payson, Phil Rosen, Roger Kaplan or the Jackson Lewis attorney with whom you regularly work.

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TO: All Members of the U.S. Chamber’s Labor Relations Committee

We wanted to take a moment to update you on the nomination of Craig Becker to the NLRB. As you may recall, at the end of last year his nomination was returned to the White House since no unanimous consent agreement was reached to keep his nomination pending (unanimous consent was reached for the nominations of Brian Hayes and Mark Pearce who are still pending).

Last week, the president re-submitted Mr. Becker’s nomination to the Senate. Today, the Senate HELP Committee scheduled a hearing on Mr. Becker’s nomination for Tuesday, Feb. 2, at 4:00 p.m. It has also scheduled committee consideration of Mr. Becker’s nomination for Thursday at 10:00 a.m.

It is expected that should the Committee again approve Mr. Becker’s nomination, one or more Senators will place a hold on the nomination. However, a hold does not prohibit a nomination from moving – rather it means that supporters of the nominee need to schedule floor time and get 60 votes to force a vote on the nominee.

Even though the Massachusetts election seems like old news, Sen.-Elect Brown has not been seated and does not expect to be seated until Feb. 11 – that means Senate leadership has a narrow window to try to confirm Mr. Becker during this lame-duck period while they maintain a supermajority of 60 votes.

It should also be noted that while Republican Senators Mike Enzi and Lisa Murkowski supported Becker’s nomination last year as part of a package, it is not at all clear that they will support Mr. Becker this time around especially in light of the way Becker supporters appear to be ramming this through.

Thus, now is the critical time for those opposing the Becker nomination to weigh in both with HELP Committee members and with moderate Senators. The Chamber earlier sent a letter (link below) calling for a hearing on Mr. Becker and we also coordinated a joint sign-on letter for members of the business community opposing the nomination (link below).  There is another joint sign-on letter being prepared for national trade associations and if you would like the text or more information please let me know (this letter is for national trade associations only).

I would encourage those of you with grassroots programs to activate them – we sent out a grassroots letter a few days ago and quickly generated more than 6,000 letters to Capitol Hill. We plan to do another grassroots communication as well.

Key targets on the HELP Committee include Democrat Michael Bennet (CO) (he is new to the Committee) and Republicans Lisa Murkowski (AK) and Mike Enzi (WY).

Key targets not on the HELP Committee include Republicans Olympia Snowe (ME), Susan Collins (ME),  George Voinovich (OH) and Democrats Ben Nelson (NE), Lincoln (AR), Pryor (AR), Landrieu (LA), Bayh (IN), Hagan (NC), Webb (VA), and Warner (VA).

Chamber letter calling for a hearing:

http://www.uschamber.com/issues/letters/2009/090724becker.htm

October association sign-on letter:

http://www.uschamber.com/issues/letters/2009/091020nlrb.htm

Background information on what to expect from the Obama NLRB:

http://www.uschamber.com/publications/reports/0909nlrbreport.htm

Michael J. Eastman

Executive Director, Labor Law Policy

U.S. Chamber of Commerce

1615 H Street NW

Washington, DC  20062

(202) 463-5342

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The Senate HELP Committee will hold a hearing on the Craig Becker nomination to the NLRB on February 2 at 4:00 p.m. (http://help.senate.gov/Hearings/2010_02_02/2010_02_02.html).  The Committee will then consider him and we expect Becker’s nomination will be approved and likely referred to the full Senate for confirmation.  Senate Democrats may try to rush Becker’s confirmation vote as their 60-vote “supermajority” will vanish with the swearing-in of Massachusetts’ Republican Senator-elect Scott Brown. 

It has been reported that a group of 66 labor law professors said in their January 21, 2010, letter to the Senate’s majority and minority leaders that they “believe firmly that, if confirmed, Mr. Becker will prove to be one of the most respected Board Members in the history of the NLRB.” This may not be as objective an academic assessment of Becker’s qualifications as it seems.  Two leaders of this group, Catherine Fisk of the University of California-Irvine School of Law and Benjamin Sachs, like Becker, have ties to SEIU. They were appointed to the SEIU Ethics Review Board in 2009. Additionally, Sachs was Assistant General Counsel of SEIU, and Fisk has been openly in favor of EFCA. Another leader of the group, James Brudney of Ohio State University’s Moritz College of Law, was a law firm associate who represented unions and was Counsel to the Senate Subcommittee on Labor 1987-1992, when the Senate had Democrats in the majority.

We will keep you updated. 

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Workplace discrimination on the basis of an employee’s support for, or opposition to, a labor organization has been unlawful since 1935, when the National Labor Relations Act (NLRA) was passed.  One exception to this principle of non-discrimination:  In non-right-to-work states, such as Massachusetts and California, an employee can be required to pay union dues under a union security clause in a collective bargaining agreement.

A second exception, however, apparently has been agreed to by labor union leaders and the White House in the guise of “health care reform.”  A deal involving the taxation of “Cadillac” benefit plans will exempt from coverage until 2018 those plans found in collective bargaining agreements (“excise tax deal”).  If enacted, union-free employees will be discriminated against – legally – in favor of unionized employees. 

What motivated this disturbing development?  Political expediency?

Some now believe “health care reform” must be enacted at any cost.  Labor union support is necessary to achieve this. Unions therefore need to be rewarded for their past political support and to ensure their continued loyalty.  Would the SEIU have given $685,000 to the unsuccessful Massachusetts Democratic candidate for Senator if the excise tax deal was not reached?  Will organized labor campaign as passionately in 2010 as in 2008 for political allies if taxation of health plans was to be imposed on a non-discriminatory basis?  Ask labor leaders Richard Trumka and Andy Stern.

There is also a practical reason why unions insisted on the excise tax deal.  Labor has had a difficult time organizing new members because, today at least, unions cannot guarantee their promises of benefit improvements will be realized after good faith negotiations.  The NLRA affords the parties the freedom to bargain and make contracts without pre-determined mandates.  This applies to health insurance.

If the excise tax deal becomes law, this freedom will likely go by the boards, and with it, employee options for health insurance.  Workers desiring good health insurance, but burdened by the excise tax for plans in union-free settings, may have difficulty resisting union organizing and bargaining demands for union-sponsored plans.  Look for unions to argue that union-free employees can remove the cause of their costly workplace discrimination by…well…joining the union which created the discrimination in the first place!

Careful observers of the “labor reform” movement are not surprised by this crass political blackmail.  EFCA, pending in Congress, also would restrict freedom of contract through government-mandated arbitration of initial collective bargaining agreements.  Further, EFCA eliminates secret ballot elections in favor of union card recognition.  From Big Labor’s perspective, the excise tax “compromise” is a welcome sign of those statutory changes.  From an employee, employer and American citizen’s perspective, however, it is an ominous precursor.

A vote in favor of a health care bill with its excise tax compromise is a vote for workplace discrimination.  Do not expect to hear that from Washington.  

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On January 1, 2010, Oregon Senate Bill 519 became effective, making Oregon the first state in the country to bar employers from requiring employees to attend meetings to learn about the company’s views about unionization. The law has several components, including the creation of a new classification of wrongful termination lawsuits and the requirement that all Oregon employers post a notice advising employees about their rights under SB 519. 

Jackson Lewis was selected by Associated Oregon Industries and the United States Chamber of Commerce to challenge SB 519 on behalf of their membership. On December 22, 2009, we filed a federal lawsuit against the Oregon Labor Commissioner, seeking injunctive relief and a declaration that SB 519 violates the National Labor Relations Act and the United States Constitution. We are optimistic the court will rule in our favor. Meanwhile, SB 519 remains in effect and employers throughout Oregon are mandated to comply with the posting requirement.

The law does not provide specifics about the posting requirement, other than to state it must be posted in a “place normally reserved for employment-related notices and in a place commonly frequented by employees.” The posting must apprise employees of their rights under SB 519. The Oregon Bureau of Labor and Industries (BOLI) has stated it does not intend to publish a model notice, leaving employers in a state of uncertainty. Employers can either post the statute itself (available at http://www.leg.state.or.us/09reg/measpdf/sb0500.dir/sb0519.en.pdf), or develop a separate posting. 

Jackson Lewis has developed a notice that employers may download and post. Although we believe the posting is compliant, please bear in mind that it has not been approved by BOLI.     Its format follows the notice of unemployment rights published by the Oregon Employment Department. 

We will provide further updates on the SB 519 challenge as it progresses through the trial court and beyond. Jackson Lewis attorneys are available answer questions about SB 519 and other workplace laws.

(Thanks to Scott Oborne in our Portland, Oregon office.)

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As reported here, the Senate late last year unanimously refused to carry over Mr. Becker’s nomination for consideration in the next Session of Congress. The nomination was thus returned to President Obama.  Now, according to the New York Times, President Obama has decided to renominate Craig Becker as a member of the National Labor Relations Board.

Due to the controversy surrounding Mr. Becker’s beliefs and the fact that Senator McCain already placed a hold on Mr. Becker’s first nomination, this is a bold move for the President.  Hopefully, this time the Senate HELP committee will hold hearings to allow for a robust debate regarding Mr. Becker’s qualifications.

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Craig Becker’s NLRB nomination may not have been thrown under the bus, but it certainly seems to have been thrown off of it. 

Just prior to adjournment on December 24, the Senate unanimously refused to carry over Mr. Becker’s nomination for consideration in the next Session of Congress.  It was returned to the President.  As a result of the adjournment and a Senate standing rule, Mr. Becker’s nomination is ended unless the President resubmits it to the Senate in the next Session, beginning in January.

That the Senate excluded Becker’s nomination from a general agreement to carry forward most pending nominations at the NLRB and other agencies — those of fellow Board nominees Mark Pearce and Brian Hayes are among the nominations postponed — appears to send a message to the White House that the Senate is in no mood for a fight over the controversial candidate.  Whether anyone at the White House is listening is another story. 

Following the Becker nomination’s approval in October by a Senate Committee vote, generally split along party lines, Senator John McCain (R-AZ) put a “hold” on the nomination.  The move would have required a supermajority of 60 votes for Mr. Becker when his nomination came before the full Senate for a vote. 

The same reception could await a renewed Becker nomination in 2010.  In fact, next time the HELP Committee might actually have to hold hearings on the nomination, a step that was avoided in October.  In the meantime, the other two Board nominations also are likely to be held up despite their inclusion in the carry-over, since Democrats do not want a Labor Board equally divided between Democrats and Republicans.

President Obama could make a recess appointment of Mr. Becker or someone else.  He would not need Senate approval for this step.  But that would be only a stopgap.  Eventually, a regular nominee would have to be submitted to the Senate, and there is little chance opposition to Mr. Becker will abate with the passage of a few months.  A less controversial choice might be the best option for the Administration.

Of course, this Administration setback raises a larger question: where is EFCA?  The Board nominations were viewed by some as a backstop to the proposed legislation; if EFCA ran into trouble, advocates of labor law change at least could take solace in a pro-Labor NLRB that could overturn unfavorable agency decisions.  But for now, it seems, the nominations have become unstuck. 

And EFCA is yet to be taken up.  Can Big Labor push through this hotly debated bill if the Senate won’t confirm the Administration’s nominee whose views most closely conform to the overhaul sought by EFCA, delaying action on all NLRB nominees?  Maybe not.  Perhaps that is why unions have begun to focus on changing state laws. (See With EFCA “Reform” on Hold in Congress, Unions Turn to State Legislatures for Labor Law Change.)  One such effort, for example, in Oregon, resulted in a law that would bar employers from holding group meetings with employees to discuss unionization.  Jackson Lewis is representing employers in a challenge to that enactment.  

Congressional Democrats, however, also could try to push through EFCA wrapped up in a broader jobs bill, which reportedly is “on deck” after health care legislation is settled. This could speed consideration of EFCA and make opposition to the proposed NLRA amendments more difficult for lawmakers.  Employers and their allies in Congress must be on guard that any EFCA measure is considered separately from a general employment bill.

Meanwhile, a cloud hangs over the NLRB’s many decisions issued during the past two years as the U.S. Supreme Court prepares to take up whether the agency has been authorized to act with only two members.  (See U.S. Supreme Court to Decide Appeals Court Conflict Over NLRB Quorum.) A Board joined by three new members would resolve this problem for future cases.  At this writing, however, the chances seem to be dimming that Craig Becker will be part of any long-term solution to this issue.  

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Labor advocates often refer to recent union “studies” as support for labor law reform. These, as it turns out, “lack sufficient credibility and analytical vigor” to support their conclusions. This revelation is made in a newly-released White Paper, Responding to Union Rhetoric: The Reality of the American Workplace, published by the U.S. Chamber of Commerce. 

The Chamber notes the following:

1.       The pro-union “studies” are sponsored by biased organizations, like American Rights At Work, which received $2.3 million from the AFL-CIO and its affiliates in 2008;

2.       The pro-union authors of the “studies” receive money directly from unions, such as one who was paid $62,472 from the SEIU in 2005;

3.       The source of the “facts” used are almost exclusively from union organizations not exactly known for objectivity;

4.       The use of NLRB statistics by the proponents often are based on accusations and not findings established after evidentiary after hearings or trials;

5.       The “studies” ignore other, more credible, sources of objective information, such as Zogby and Rasmussen polls.

 For those truly interested in a factual basis to support or not support labor law changes, the Chamber’s White Paper is indispensible.

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As we reported in “With EFCA ‘Reform’ on Hold in Congress, Unions Turn to State Legislatures for Labor Law Change,” Kris Maher wrote an article discussing the signing into law of the “Worker Freedom Act” in Oregon, which prohibits employers from holding mandatory meetings with employees to discuss union organizing.  In Washington state, Oregon’s neighbor to the North, a similar bill, the “Worker Privacy Act” has been proposed.  This bill was gaining momentum towards passage until an e-mail chain from Jeff Johnson, Special Assistant to the President Washington State Labor Council, AFL-CIO was leaked.  In this e-mail, Mr. Johnson stated, “Union leaders would send a message to the State Democratic party and to the Truman and Roosevelt funds from the House and Senate that ‘not another dime from labor’ until the Governor signs the Worker Privacy Act.”

In his article, Maher stated that once the e-mail was leaked to Washington State lawmakers they dropped the bill on the grounds that the e-mail raised “legal and ethical questions.”

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Last week we told you that “Organized Labor certainly has the ‘ear’ of this Administration.”  We didn’t know how right we were.

On Friday, the Obama Administration published a partial list of visitors who have visited the White House.  Andy Stern, President of Service Employees International Union (SEIU), visited 22 times, more than any other single individual on the list.   Additionally, newly-elected President of the AFL-CIO, Richard Trumka, visited 7 times.

There is no doubt that Vice President Biden meant it when he said to a group of Labor leaders only 10 days after President Obama’s inauguration “Welcome back to the White House!”

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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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Discussions with key U.S. House staffers indicate that in the wake of Senator Arlen Specter's (D-PA) AFL-CIO speech suggesting the possibility of a Senate EFCA compromise, Monday's talk of the House moving forward on the controversial bill now is merely an option if the Senate fails to act this Fall.

The consensus remains that the Senate likely will move first if a "Specter Compromise" is reached and the House would then take up the Senate-passed bill.

On Tuesday, the heavily Democratic Massachusetts Senate voted 24-16 to allow Governor Deval Patrick to name an interim U.S. Senate replacement for the late Edward M. Kennedy. In what many Republicans call "a stunning example of Democrat hypocrisy,” the state legislature on Wednesday gave the measure final approval, thus allowing an immediate interim appointment.

This morning it was announced that Edward Kennedy's former aide, 71-year-old Paul Kirk, was appointed by Governor Patrick. “There is no question that Paul Kirk will continue to do the work Ted Kennedy would have done if he were here,” Boston-based Democratic consultant Mary Anne Marsh said, “He’s not going to be Ted Kennedy, but he certainly will vote like him and the office will operate the way it would have under Kennedy.” In January 2010, Massachusetts voters will elect a senator to serve the remaining three years of Kennedy's term.

Senator Robert Byrd's hospitalization Tuesday, after falling at his home, provides another obstacle for Democrats who have yet to fully enjoy the strength of a filibuster-proof majority.

It remains to be seen if either Mr. Kirk or the Massachusetts senator who is to be elected in 2010 will have the opportunity to vote on a version of EFCA.
 

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House Democrats plan to put EFCA on the House floor for a vote in about a month, a credible source just reported to this blog. We are not sure which version of EFCA will be sent to the floor, but House Democrats, with their overwhelming majority, could seek to pass the full version of EFCA, including its card-check provision. If the Senate passes the "Specter Compromise" version of EFCA, a Conference Committee would have to iron out the differences.

We will keep you informed of developments.
 

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The Legal Services Corp., a congressionally chartered, taxpayer entity, is being subjected to a union organizing drive.  Presented with a demand for recognition through a card check, the organization has declined insisting on the right to a secret ballot election.

The exercise of this right – under the law – is drawing fire. Supporters of EFCA say this situation is a prime example of why EFCA should be enacted.

Senator Harkin, the new Chairman of the Senate HELP Committee not only is critical of the LSC’s right to insist on a secret vote but also finds it “…troubling to learn that LSC is now using hard fought-for-taxpayer funds to retain a law firm and engage in a campaign to potentially frustrate employee’s desire to exercise their right to join a union.” (See link to - EXCLUSIVE: Federal program rejects 'card check' effort). 

Imagine that … the LSC has hired a law firm in connection with the compliance of their employee’s right to join or not to join a union. Should LSC not hire legal counsel and take the chance of violating the law?

Senator Harkin is the key Senator seeking an EFCA compromise. Many labor leaders praised his selection as Chairman of the HELP Committee. Senator Harkin said to the press when his selection was announced that “EFCA is still on the burner…EFCA is still cooking.” (DLR, 9-10-09). 

Senator Harkin is the son of a coal miner.  Richard Trumka, expected to be elected AFL-CIO President next week, was a former President of the United Mine Workers. Do not be surprised to see Senator Harkin at the convention being held in Pittsburgh. Employers should expect coal in their Christmas stockings this year.

We congratulate Senator Harkin and wish him well on behalf of everyone vitally interested in workplace issues.  

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A Washington Post article published on Labor Day casts some light onto the AFL-CIO’s next president Richard Trumka. Trumka comes from a long line of coal miners in Pennsylvania. After working in the mines himself, he attended college and then Villanova law school “in preparation for a career of union activism” where he was class mates with Michael J. Lotito one of this blog’s authors. Upon graduating, Trumka began his career in organized labor as an attorney with the United Mine Worker’s union and worked his way up to become its president. Years later, Trumka eventually took the number two position in the AFL-CIO.

The article refers to the 1989 Pittston Coal strike as Trumka’s “crowning achievement.” We are unclear how Trumka measures the success of a strike, but his crowning achievement resulted in a court ordered injunction being levied against his union, his union officials being held in contempt of court and his union being fined more than $30 million dollars for strike related activities. Moreover, some of his strikers engaged in truly abhorrent behavior during the strike which included multiple episodes of violence towards company personnel and their property, a shooting and even a bombing.

The article also talked about Trumka’s agenda and plans for the labor movement. Trumka reportedly met with President Obama and current AFL-CIO president John Sweeney on Labor Day to discuss that “after being elected in part because the AFL-CIO [sic] persuaded its more skeptical members to vote for him, Obama should not disappoint [AFL-CIO] by settling for half measures.” Indeed, the article refers to AFL-CIO’s disappointment with the current status of EFCA which was described as “bogged down amid a distinct lack of enthusiasm from Obama.”

The article notes that “Trumka’s ascent represents a true changing of the guard, ushering in a time of leadership that will be far more muscular than that of the avuncular Sweeney.” Referring to himself in the third-person, Trumka said “It’s true that he’s more aggressive than Sweeney was…but I think that there is a time when you have to be aggressive and only can take so much, when you’re getting it from people who are not looking for a way to resolve a problem but are looking for a way to kill the labor movement.”

Trumka sent a clear message to politicians who accepted organized labor’s support when he said “[m]ore than ever, we need to be a labor movement that stands by our friends, punishes its enemies and challenges those, who, well can't seem to decide which side they’re on…I’m talking about the politicians who always want us to turn out our members to vote for them, but who somehow always seem to forget workers after the votes are counted.”

Lest we forget, Trumka is the person who defined a corporate campaign, a “top down” pressure tactic used by unions to get companies to concede to union wishes, as a device that “swarm[s] the target employer from every angle, great and small, with an eye toward inflicting upon the employer the death of a thousand cuts rather than a single blow.” It is important for the public to know that the new aggressive head of the AFL-CIO whose crowning achievement was a violent and lawless strike , believes in punishing those he classifies as the labor movements enemies and advocates the slow torture of employers in the hopes of causing their economic death. It is tough for employers that are being subjected to a union imposed economic death to “create jobs” and hire more employees. So much for unions trying to help revive our economy and create new jobs.

What are your thoughts about Trumka and the potential impact he will have in shaping Labor Law reform?

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As we mentioned yesterday Senator Dodd had a key decision to make. He made it and is staying at banking. This means Senator Harkin, the primary negotiator for the so called EFCA compromise, is likely to chair the Senate committee responsible for the legislation. We will follow this situation closely and keep you updated.

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The death of Senator Edward M. Kennedy (D.-Mass.) on August 28 has left open the chairmanship of the U.S. Senate's Committee on Health, Education, Labor and Pensions (HELP Committee). The Committee has jurisdiction over legislation related to labor issues, including Employee Free Choice Act. 

The HELP chairman is responsible for moving legislation through the Committee and helping manage bills during Senate floor action. Additionally, the chairman would be the lead Senator in negotiations in the conference committee that works out differences between bills that passed the House and Senate. 

In the Senate, committee chairmanships usually are decided by seniority. With the Democrats now in the majority, the most senior Democratic senator on the Committee has the right of first refusal for the chairmanship. Normally, a senator may turn down an opportunity to chair a committee for one of two reasons. The first is that the senator already chairs another committee and, since Senate rules limit senators to chairing only one full committee at a time (they can also chair two subcommittees), the senator prefers to retain the chairmanship of his or her current committee. The second reason is that the senator is in a position of party leadership and chooses to focus on that role and allow a more junior senator to take on the chairmanship. This second reason usually relates to the top two leadership positions of Majority Leader and Whip. 

Senator Christopher Dodd (D.-Conn.) is the first in line for the open HELP Committee chairmanship. Senator Dodd is currently the chairman of the Senate Committee on Banking, Housing and Urban Affairs, and presently is working on major legislation for reform of the regulatory environment for banks and financial institutions. During Senator Kennedy's absence due to his illness, however, Senator Dodd has taken the lead on drafting and guiding through committee the healthcare reform legislation passed by the HELP Committee. Senator Dodd considered Senator Kennedy his best friend in the Senate and may feel some personal commitment to Senator Kennedy and his legacy to focus on and ensure passage of healthcare legislation. Though Senator Dodd is a supporter of EFCA and friend of labor, he has been more focused on healthcare reform and regulatory oversight of the financial industry. 

Senator Dodd is facing his toughest re-election environment as he prepares to run for his sixth term in the Senate, and recent polling has him trailing against leading Republican challengers.  Senator Dodd's decision likely will be guided by his analysis of which chairmanship will bode best for his re-election.  

Should Senator Dodd pass on the HELP Committee chairmanship, the next in line is Senator Tom Harkin (D.-Iowa). Senator Harkin’s assumption of the HELP chairmanship would have a dramatic effect on EFCA. He is the lead Senate sponsor for EFCA and is heading the negotiations to reach a "compromise" that could garner the 60 votes needed to invoke cloture and result in a vote for passage in the Senate. Increased focus on EFCA would result from Senator Harkin becoming chairman of HELP. Organized labor likely would push him to act quickly. EFCA would help him quickly put his stamp on the committee as its new chairman.  

Senator Harkin is the current chairman of the Senate Committee on Agriculture, Nutrition, and Forestry. Agriculture is the number one industry in Iowa. He would have to give up that seat in order to become HELP chairman.  

Should Senators Dodd and Harkin both pass on the chairmanship, Senator Barbara Mikulski (D.-Md.) is next in line. Senator Mikulski does not currently chair a full committee, so she would not face the same choice as her two colleagues in assuming the HELP chairmanship. She likely would relish the opportunity to chair a major committee that gives her a lead role in healthcare reform. She currently chairs the HELP Committee's subcommittee on retirement and aging and is active on Alzheimer's issues. Senator Mikulski has a strong relationship with labor and was the lead Senate sponsor of Ledbetter Fair Pay Act that became law earlier this year. 

In light of the intense focus on healthcare reform, and the importance of the HELP Committee chairmanship, this key position is unlikely to remain vacant for long. 

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