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

The House Education and the Workforce committee is holding a hearing on February 11, 2011, to review the actions of the National Labor Relations Board.  We expect they will talk about recent NLRB decisions and rulemaking efforts and the general direction of the Board. 

In 2010, the Board's budget was $287 million, up $20 million from the prior year.  Some cuts might be in the offing.   In addition, there may be an effort made to defund certain activities contemplated by the Board. We will provide you with more information after the hearing concludes.

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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 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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With a clear conflict among the federal Circuit Courts and with the National Labor Relations Board and employers calling to have the Board quorum issue settled, the United States Supreme Court has agreed to decide whether the NLRB is authorized to render decisions while three of its five seats remain vacant.  The Court granted certiorari to the Board’s September 29 request to determine whether the National Labor Relations Act authorizes the agency to act with only two members if the Board previously delegated its full powers to a three-member group that included the two remaining members. 

The Court said it would review the Seventh Circuit’s decision in New Process Steel v. NLRB (No. 08-3517, 7th Cir. May 1, 2009) (where, this May, the Court held that the Board had such authority) in a brief order issued November 2. A petition for certiorari is still pending in Laurel Baye Healthcare v. NLRB (No. 08-1214, D.C. Cir. May 1, 2009) (where, also this May, the District of Columbia Circuit held that the Board lacked such authority), as well as in two other cases, from the Second Circuit and the First Circuit, both of which sustained the Board’s position, albeit on somewhat different grounds from the New Process Steel decision. Snell Island SNF v. NLRB (No. 08-3822/08-4336, 2d Cir., June 17, 2009) and Northeastern Land Svcs. v. NLRB (No. 08-1878, 1^st Cir., Mar. 13, 2009). A ruling on the petition in Laurel Baye is expected shortly.

The dispute concerns the meaning of a provision in the National Labor Relations Act creating the NLRB. It provides, in part, that the NLRB: 

is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise. . . . A vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof.

29 U.S.C. § 153(b).

Since January 2008, the Board has been functioning with only two members — Chairman Wilma Liebman and Member Peter Schaumber. In December 2007, when the Board still had four members (with two recess appointments about to expire), it delegated its powers to a three-member panel. When Board membership shrank to two, the agency said the NLRA allowed it to continue operation. The two-member Board is estimated to have issued more than 400 decisions in the nearly two years it has been operating.

President Barack Obama has nominated three candidatesto fill the empty seats on the Board:  two labor-side attorneys, Craig Becker and Mark Gaston Pearce, and the current Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), Brian Hayes. These nominees have cleared the HELP Committee but one or more Senator’s have placed holds on Mr. Becker’s controversial nomination. These Senatorial holds will delay the nominations from reaching the Senate floor for a confirmation vote.

The Supreme Court’s decision in New Process Steel is expected next Spring. 

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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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President Obama sent his nominations for the three empty seats on the NLRB to the Senate on July 9, 2009. One of the three, Craig Becker, is currently the Associate General Counsel for the Service Employees International Union (SEIU). Although Mr. Becker has much labor law experience, he has some extreme ideas for reforming labor law, many of which would involve stripping employers of many long-established protections.

In 1993, Mr. Becker wrote an article for the Minnesota Law Review, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 Minn. L. Rev. 495 (Feb. 1993), in which he claims that the current union election process is flawed and proposes  wholesale changes to fix them.

For example, Mr. Becker proposes that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” This would m ean an employer would lose its right to participate in hearings before the Board to resolve issues related to the election, or even to have an observer present at the election, among other things. Mr. Becker proposes eliminating the 72-year-old mandate of the Taft-Hartley Act that the Board certify unions based only on the results of an NLRB-supervised secret ballot election. Mr. Becker also proposes restricting, and in some cases eliminating, an employer’s “free speech” rights during an election campaign, although the right is spelled out in the Act.  In short, Mr. Becker would go further than even EFCA .

What is most disturbing, back in 1993, Mr. Becker, then writing as an academic, suggested that many of his drastic “reforms” could be accomplished through the Labor Board’s re-interpretation of the Act. He would sidestep legislation while kicking over the traces. Now, Mr. Becker is poised to take his seat on the Board where he could try to effectuate his ideas.  

We do not know whether the Senate will conduct hearings on Mr. Becker’s nomination before voting on his confirmation, although the U.S. Chamber of Commerce, on July 24, requested the Senate Health, Education, Labor and Pensions Committee do exactly that. R. Bruce Josten, the Chamber’s executive vice president for government affairs, said, in a letter to HELP’s chairman and ranking member, that SEIU “has a record of using questionable pressure tactics with the goal of forcing employers and workers to recognize unions without the democratic protection of secret ballot elections.” He cited SEIU's “intense advocacy” of the proposed Employee Free Choice Act and said Becker might attempt through Board decisions to impose card-check certification and “the effective elimination of secret ballots.”

In early-August, a Republican staffer reportedly said Senator Michael B. Enzi (R-Wyo.), HELP’S ranking member, wants a hearing on all three NLRB nominees. However, HELP so far has not announced any plans for a hearing and has not yet scheduled a vote.

We will keep you advised as the confirmation process progresses.

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