One of a President’s most effective tools to change labor law to his liking without passing legislation is by appointing members to the National Labor Relations Board who support his view of the National Labor Relations Act. The National Labor Relations Act (the federal law that governs labor law in the private sector) provides for a five-member Board with each member serving a 5-year term. As the terms expire, the President nominates replacements, which must be approved by the Senate before they are seated on the Board. By tradition, three of the members are from the same political party as the President in the White House.
Since January 2008, the Board has been operating with only two of its five allotted members. President Obama nominated three replacements after taking office, but none had been confirmed by the Senate.
One of the replacements Obama nominated, Craig Becker, was highly controversial. Becker was serving as associate general counsel for the Service Employees International Union (SEIU) and the AFL-CIO, one of the most aggressive unions in lobbying for legislation, including the Employee Free Choice Act. The President of the SEIU, Andy Stern, has been in the news for being the most frequent visitor to the Obama White house.
Much of the controversy over Becker stems from two of his law review articles. Becker has expressed the view that employers should have only very restricted, if any, role in union elections. He believes that employers have no legitimate interests in union organizing. Because of this, and other, controversial positions, Becker’s nomination was hotly contested in the Senate. Many employers and employer groups, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, were concerned that Becker would try to implement provisions of the Employee Free Choice Act through Board decisions since the EFCA had bogged down in Congress. Many Senators shared these concerns about Becker’s pro-labor bias and refused to approve his nomination. The Senate agreed to pass on Obama’s other two less controversial nominations (one Democrat and one Republican), but the Senate Democrats insisted that the nominees be considered as a package. Therefore, the nominees were never confirmed by the Senate.
Now that the healthcare reform bill has passed and Congress is in recess, Obama took the opportunity to make two recess appointments to the Board. Recess appointments do not require approval from the Senate. Last Saturday (March 27th), Obama announced the recess appointments of Craig Becker and Mark Gaston Pearce, the two Democrat nominees. Obama did not nominate Brian Hayes, his Republican nominee, for a recess appointment. Accordingly, the Obama Labor Board currently consists of four members: three Democrats and one Republican.
Following the announcement of the recess appointments, pro-labor groups were expectably pleased. One such group, American Rights at Work, congratulated President Obama and asked its members to send him electronic “thank you notes.” According to the group's email distribution, President Obama “used his executive power to held the NLRB tackle its backlog of critical cases, making ‘recess appointments’ when Congress left town.” The email also quoted Obama as saying “I simply cannot allow partisan politics to stand in the way of the basic functioning of government.”
Some commentators suspected that the two-member Board consisting of one Democrat (Liebman) and one Republican (Schaumber) were deciding only the “easy” cases – the ones they could agree on – while leaving the more significant, and more contested cases until the Board had at least a three-member quorum. Now that the Board has its three-member quorum, it will likely start deciding those more significant and contested cases. With a strong pro-union majority, it is reasonable to expect decisions that will heavily favor organized labor.
We will continue to monitor the recess appointments and the Board’s activity with its new pro-union majority. If you have any questions about the Board decisions we see coming down the pike and how they could affect your business operations, please don’t hesitate to contact us.