Obama NLRB Nominations Spark Controversy In The Senate

While efforts to pass the Employee Free Choice Act (EFCA) have raised great concern in the management community, the pending nominees to the National Labor Relations Board (NLRB or Board) could, if confirmed, have at least as profound an impact upon labor relations.

Currently, the NLRB has two members—Chairman Wilma Liebman, a former union attorney whose term expires on August 27, 2011, and Peter Schaumber, a former management attorney whose term expires on August 27, 2010. The Obama Administration has submitted nominations to the Senate for the three vacant Board positions: Craig Becker, Associate General Counsel of the Service Employees International Union (SEIU); union attorney Mark G. Pearce; and Brian E. Hayes, a Republican Senate counsel and attorney.

As has been the practice in recent years, the three nominees are being advanced by the Obama Administration for consideration together as a “package.” On October 21, 2009, the Senate Health, Education, Labor, and Pensions (HELP) Committee approved the three nominees on a 15-8 vote, with Republican Senators Lisa Murkowski (Alaska) and Mike Enzi (Wyoming) joining all of the Democrats on the Committee in voting for the nominees.

On October 21, 2009, Senator John McCain (R-Arizona) objected to the Committee’s refusal to hold a hearing on Becker’s nomination and indicated that he may place a “hold” on the nomination which, per Senate custom, likely would prevent the Senate from voting on the nomination. HELP Committee Chairman Tom Harkin (D-Iowa) stated in response that were McCain to do so, the nominations of Pearce and Hayes also would not be brought before the full Senate.

In opposing Becker, McCain noted the opposition to his nomination from numerous employer groups including the U.S. Chamber of Commerce and the National Association of Manufacturers. McCain stated that he would “do anything I can to block [Becker’s] nomination.”

Management resistance to Becker is largely based on his past writings and positions. As a labor law professor, Becker authored several papers advocating changes in the NLRA or its application. Among the positions he advances are that:

• employers should not be parties to NLRB representation proceedings
• union elections should be removed from the workplace
• An employer should not be able to require employees to attend meetings on company time to advocate against unionization.
• employers should be bound by their own restrictions on solicitation and distribution
• “repeated grievance strikes” should be protected activity
• the NLRA’s definition of supervisors excluded from collective bargaining should be substantially narrowed

Utah Republican Senator Orrin Hatch has also cited Becker’s role in drafting recent pro-labor Executive Orders while
employed by the SEIU.

Many management groups are concerned that, if confirmed to the NLRB, Becker would work with a Democrat-majority Board to implement far-reaching labor law changes including those described in his academic writings and/or publicly advanced by the SEIU. Moreover, many Board watchers predict that a Democrat-majority NLRB would attempt to establish some of these changes through formal rulemaking—making it difficult for subsequent Boards to revise or eliminate them. Chairman Liebman has also publically indicated her support for additional rulemaking.

The scope of labor policy change which the NLRB—even without the enactment of EFCA—could undertake is massive. For example, based upon her Board concurrences or dissents, as well as her public statements, Chairman Liebman favors changing the NLRB’s position (and likely overruling existing NLRB case law) in important areas such as:

• neutrality and card check recognition
• solicitation of union authorization cards
• the use of an employer’s e-mail system for union solicitation
• the definition of “supervisors” excluded from collective bargaining
• the exclusion of certain graduate students from collective bargaining
• representation rights for non-union employees
• presumptions regarding alleged threats of facility closure

We will continue to monitor the nominations to NLRB and provide updates regarding significant developments. For more information, please contact the Seyfarth attorney with whom you work or any Labor & Employment attorney on our website.