Recess Appointments Give Unions a 3-1 Majority at the NLRB and Fill Vacancies at the EEOC

Hal Coxson
April 22, 2010 — 1,996 views  

On Saturday, March 27, which was the first day of the congressional Easter Recess, President Barack Obama announced the recess appointment of highly controversial SEIU and AFL-CIO lawyer Craig Becker from Washington, D.C. and practicing union lawyer Mark Pearce from Buffalo, N.Y., to be Board Members on the five-member National Labor Relations Board (NLRB). The two recess appointees will join current Chair Wilma Liebman to give the NLRB a three-member Democratic majority of former union-side lawyers. Under a recess appointment, Becker and Pearce will serve until the end of the next session of Congress, that is, until the end of 2011.

The President did not recess appoint Republican lawyer Brian Hayes, the Minority Labor Policy Director from the Senate Health, Education, Labor and Pensions Committee, whom he had previously nominated. The lone Republican currently serving on the Board is former arbitrator Peter Schaumber, whose term expires on August 27, at which point there will be two Republican vacancies. If those vacancies are not filled, there would be no Board Member to write dissenting opinions to help guide reviewing federal courts on appeal. Not since the New Deal and first six years of the NLRB, 1935-1941, has the Board been all Democrats or all from one party. The Taft-Hartley Act followed in 1947 to balance the scales.

The term of current NLRB General Counsel Ronald Meisburg, a Republican, also expires in August.

Strong Opposition to Becker's Appointment

The business community strongly opposed Becker's nomination throughout the confirmation process. Most recently, 20 national trade associations wrote to President Obama last week urging that he respect the Senate's bipartisan opposition to Becker's nomination and not appoint Becker. The business groups took no position on the nominations of Pearce and Hayes.

Becker also was opposed by members of the Senate, including two Democrats, who prevented his confirmation by voting against the Senate taking up his nomination. All 41 Republican Senators sent a letter to President Obama opposing Becker's recess appointment and suggesting that a bipartisan alternative be used to fill the Board vacancies.

Why Is Becker So Controversial?

The opposition to Becker is based largely on his legal writings which called for far-reaching, pro-union labor law reforms, many of which, he wrote, could be instituted by the NLRB itself, without involving congressional legislation.

For example, among his more inflammatory writings (which he refused to recant at the Senate committee hearings on his nomination), in a 1993 Minnesota Law Review article Becker advocated that employers should have no role in union representation elections. He wrote: "employers should have no right to be heard in either a representation case or an unfair labor practice case, even though Board rulings might indirectly affect their duty to bargain."

He further advocated eliminating the option of "no union" from the voting ballot such that the only "question posed on the ballot would simply be which representative." He continued that employers should not be permitted to challenge the composition of a bargaining unit or union campaign conduct prior to a representation election, and that an employer's campaign conduct should be restricted to the same extent their rules restrict solicitation and distribution at the workplace by outside parties, such as union organizers. He advocated an open forum for union organizers at the workplace to "exactly the same extent" that employers communicated with employees concerning union organizing. Also, in other writings he called for repeated, short-term grievance strikes as a way of avoiding prohibitions on "intermittent" or "partial" strikes, narrower exclusions for certain categories of supervisors, and "bargaining duties on employers other than the direct employer of workers" in contingent work relationships.

In a 2005 article Becker co-authored with AFL-CIO General Counsel Jonathan Hiatt, he called for reversal of a number of NLRB precedents, including those regarding discipline for supervisory solicitation for union authorization cards, as well as advocating the increased use of extraordinary remedies against employers.

What's Next?

Upon the arrival of the two recess appointees, the NLRB is expected to take up a number of undecided cases pending at the Board, as well as reversing many of the NLRB's precedential decisions that diverge from Becker's writings and Chair Liebman's previous dissenting opinions. In addition, the Board is expected to engage in rulemaking to revise current representation election procedures, making it easier for unions to organize.

For additional information, Ogletree Deakins will be holding its annual Workplace Strategies conference on May 6 and 7 at the Bellagio Hotel in Las Vegas. It will feature a discussion of what's next at the NLRB and what employers should do to prepare for changes and more aggressive enforcement. To register for the program, click here or contact Kim Beam at [email protected] or (800) 277-1410. Conference attendees will receive a copy of the book, The National Labor Relations Board in the Obama Administration: What Changes to Expect, written by the Ogletree Deakins father and son team of Hal Coxson (Washington, D.C.) and Chris Coxson (Morristown, N.J.) for the U.S. Chamber of Commerce. The 77-page book discusses over 50 decisions likely to be revisited by the new NLRB majority.

New EEOC Appointees

In addition to making recess appointments to the NLRB, President Obama extended recess appointments for the U.S. Equal Employment Opportunity Commission (EEOC). The recess appointees are:

Jacqueline A. Berrien for EEOC Chair. Berrien has served as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund and with the Lawyers' Committee for Civil Rights and the American Civil Liberties Union (ACLU). Berrien is a graduate of Harvard Law School, where she served as a General Editor of the Harvard Civil Rights-Civil Liberties Law Review.

Chai R. Feldblum for EEOC Commissioner. Feldblum is a Professor of Law at the Georgetown University Law Center. She previously served as Legislative Counsel to the AIDS Project of the ACLU where she played a leading role in the drafting of the Americans with Disabilities Act (ADA) of 1990 and, later as a law professor, in the passage of the ADA Amendments Act of 2008. Feldblum clerked for Supreme Court Justice Harry A. Blackmun after she received her J.D. from Harvard Law School and B.A. from Barnard College.

Victoria A. Lipnic for EEOC Commissioner. Lipnic was the U.S. Assistant Secretary of Labor for Employment Standards from 2002 until 2009. She was the Workforce Policy Counsel to the Republican members of the Education and Labor Committee in the U.S. House of Representatives. Prior to that she was in-house counsel for labor and employment matters to the U.S. Postal Service for six years. She also served as a special assistant for business liaison to the U.S. Secretary of Commerce, the Honorable Malcolm Baldrige. She earned her J.D. from George Mason University School of Law.

P. David Lopez for EEOC General Counsel. Lopez has served at the EEOC for 13 years in the field and at headquarters. Currently, Lopez is a Supervisory Trial Attorney with the EEOC's Phoenix District Office. Before joining the EEOC, Lopez served at the Civil Rights Division, Employment Litigation Section, at the U.S. Department of Justice in Washington, D.C. from 1991 to 1994. Lopez received his J.D. from Harvard Law School.

Additional Information

Should you have any questions about these recess appointments, contact the Ogletree Deakins attorney with whom you normally work or the Client Services Department at 866-287-2576 or via e-mail at [email protected].

Hal Coxson

Ogletree, Deakins, Nash, Smoak, & Stewart, P.C.