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NLRB Still Up in the Air
The controversy over the nomination to the National Labor Relations Board of a former union attorney with an "extreme point of view" continues to percolate, as President Obama resubmitted his name to the Senate for reconsideration. And, as the drama plays out, the understaffed board has only two of five members -- and its ability to make decisions has been legally challenged.
Healthcare reform is taking center stage as Congress returns to work this week following the election in Massachusetts and its recent winter break, but at some point, the Senate will have to consider several key Obama administration appointments, including three long-vacant seats on the National Labor Relations Board. Two of NLRB nominees, first submitted in July 2009, have met little resistance: Mark G. Pearce, an attorney with Creighton, Pearce, Johnsen & Giroux; and Brian E. Hayes, labor policy director on the Senate HELP Committee. (Both nominations were held over to 2010.) That hasn't been the case for the third, Craig Becker, an associate general counsel for the AFL-CIO and the Service Employees International Union whose nomination to the NLRB has run into strong opposition from business groups and others. Becker's nomination was returned to the White House last month, after Sen. John McCain, R-Ariz., put a hold on it following a Committee on Health, Education, Labor and Pensions vote. (Even though the committee approved the nomination by a 15-8 margin, a single senator can block it from advancing.) President Barack Obama resubmitted his name again on Wednesday, which promises to re-ignite the controversy surrounding his candidacy that first flared up last summer. In July, business groups such as the U.S. Chamber of Commerce expressed serious reservations about Becker's "out-of-the-mainstream" views on the National Labor Relations Act, the federal law administrated by the NLRB. R. Bruce Josten, executive vice president for government relations at the U.S. Chamber, urged the Senate committee to hold a hearing on Becker's nomination, citing concerns over writings in which Becker suggested employers have no legitimate role to play when their employees are targeted by a union-organizing campaign. Josten also cited predictions from former NLRB Chairman William Gould that Becker could advance "card-check" organizing through administrative action by the NLRB, regardless of what Congress does on the legislative front. Some believe there's a good chance of a showdown between the administration and Becker opponents. Lawrence Lorber, a partner with Proskauer Rose in Washington, noted that neither the White House nor employer groups "have lessened their position on Becker." Jerry M. Hunter, a partner in the St. Louis office of Bryan Cave and a former general counsel at the NLRB, believes labor groups continued to put pressure on the president to resubmit the nomination. By the end of October, Hunter says, Andy Stern, president of the SEIU, reportedly had 23 separate meetings at the White House. Can the Senate muster enough votes to move the nomination forward? Experts say that's hard to predict, though it clearly became less likely with the election last week of Scott Brown, a Republican, in the special election in Massachusetts to fill the seat held by the late Ted Kennedy. Since January 2008, the NLRB has functioned with just two members: Wilma Liebman, a Democrat who chairs the board, and Peter Schaumber, a Republican. But there has been disagreement in the federal courts as to whether the more than 500 decisions issued by the NLRB are valid. On Nov. 2, the U.S. Supreme Court agreed to consider that question in 2010. Lorber believes the Obama administration wants to keep his three nominees intact as a single slate. Adding only two members -- Pearce, a Democrat, and Hayes, a Republican -- would do little to ease the split board. While four members on the board would be better than two, it would still leave it deadlocked politically. When the Senate reconsiders the nomination, critics are likely to point to his writings as reason enough not to confirm him. "In the minds of the business community, it's further evidence that he's more than just pro-labor -- [it's] that he has an extreme point of view that goes well beyond what some believe to be mainstream," says Greg Robertson, a partner and co-head of the labor and employment team at Hunton & Williams in Richmond, Va. "There's a real concern that Becker would engage in rule-making," he adds. Robertson says he isn't surprised the Obama administration didn't make a recess appointment over the winter break, since it would have been just for one year and typically makes it more difficult to appoint nominees once their term expires. "If you want someone on the board for the full five-year term," he says, "the president has a much better chance going through Congress." But, like many, Robertson suspects the nomination won't easily sail through the confirmation process. January 22, 2010 Copyright 2010© LRP Publications |
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