President Obama Makes Recess Appointments to the National Labor Relations Board and Equal Employment Opportunity Commission
Seyfarth’s Washington Perspective

National Labor Relations Board

On March 27th, President Obama announced recess appointments for Craig Becker and Mark Pearce to be members of the National Labor Relations Board (the Board or NLRB). The appointments, which were made without Senate approval, will be effective until the Senate either confirms them or someone else to fill the vacancies, or until the Senate adjourns in 2011. For all practical purposes, that means the appointments probably will be effective until late fall of 2011.

Becker has served as Associate General Counsel of the Service Employees International Union, one of the largest and most prominent unions in the country. Pearce is a union-side labor attorney in private practice. Becker has been an enthusiastic and vocal supporter of the Employee Free Choice Act (EFCA) which, if enacted, would make it easier for unions to organize employers, require binding arbitration in the case of many first labor contracts, and would dramatically increase penalties for labor law violations. Becker has also expressed the view that employers should have no role in the union organizing process at all. Both Becker and Pearce had been nominated for full NLRB terms by President Obama, along with a Republican nominee, former management lawyer Brian Hayes. Often, Democratic and Republican nominees are confirmed together as a “package deal” to overcome partisan objections to individual nominees. Not so here. Substantial employer-side opposition to Becker, in particular, resulted in his nomination being filibustered in the Senate; and, as a result, none of the three nominees had received a confirmation vote. All 41 Republican Senators signed a March 25th letter to President Obama urging him not to give Becker a recess appointment, reflecting the employer community’s strong opposition to Becker from the time of his nomination. A further indication of the partisan atmosphere surrounding the NLRB nominees is evident in the President’s decision not to accord the Republican nominee a recess appointment while granting recess appointments to the two Democratic nominees.

Until these recess appointments, the five-member Board has been operating for well over a year with only two members: Democratic Chair Wilma Liebman and Republican member Peter Schaumber. The two-member Board has continued to issue decisions, although the validity of those decisions (as arguably lacking a sufficient quorum) has been challenged in a case argued in the U.S. Supreme Court just last week. While the recess appointments indisputably result in a Board quorum, the appointments of Becker and Pearce are likely to make the NLRB’s decisions and actions significantly more pro-labor. The NLRB will now have a 3-1 pro-labor composition with one vacancy still remaining. In the absence of another Republican nominee when Schaumber’s term expires on August 27, 2010, the NLRB will be comprised entirely of former union-side labor attorneys. Without any dissenting voice after August 27th, Liebman, Becker and Pearce not only would be able to expedite pro-union decisions and rulemaking initiatives, but would be able to present their findings with no published dissenting view, limiting judicial scrutiny. With the two additional Democratic members the Board can be expected to issue decisions favoring unions in a number of important areas, including: union access to employer e-mail and other property, the definition of supervisory status, the inclusion of employees of separate employers into the same bargaining unit, and the limits of employer free speech. With EFCA stalled in the Senate, it is widely feared that Becker and Pearce will work with Board Chair Liebman to advance through rulemaking many of labor’s policy objectives which have been blocked legislatively, as well as other union objectives such as bargaining units comprised of only a minority of an employer’s employees.

Equal Employment Opportunity Commission

On March 27th, President Obama also announced recess appointments to four positions at the Equal Employment Opportunity Commission (EEOC or Commission). The President named Associate Director-Counsel of the NAACP Legal Defense and Educational Fund Jacqueline Berrien to be Chair; Georgetown law professor Chai Feldblum to a Commissioner’s seat; Former Assistant Secretary of Labor and Seyfarth Shaw attorney Victoria A. Lipnic to a Commissioner’s seat; and Supervisory Trial Attorney with the EEOC’s Phoenix District Office P. David Lopez to be General Counsel. Although these nominees were favorably voted on by the Senate Health, Education, Labor and Pensions Committee in December of last year, no action was being taken for a full Senate vote due to the controversy over the NLRB nominees. As with the NLRB, the President’s recess appointments bypass Senate confirmation and therefore are limited to serving until the end of the next session of Congress. They will join current EEOC members Stuart Ishimaru (currently acting Chair) and Constance Barker and provide a full quorum to the EEOC.

A number of important regulatory items have been on hold at the EEOC pending the return of a quorum. The Commission has to vote on regulations before they can be both proposed and finalized. Final rules to implement the Genetic Information Nondiscrimination Act of 2008, originally proposed in May 2009, are awaiting clearance at the Office of Management and Budget, even though the statute went into effect on November 21, 2009. The Commission proposed to revise its Americans with Disabilities Act (ADA) regulations and accompanying interpretive guidance in order to implement the ADA Amendments Act of 2008 last September. Recently the EEOC issued a new rulemaking to address the meaning of “reasonable factors other than age” (RFOA) under the Age Discrimination in Employment Act (ADEA). Comments are due on the RFOA proposal by April 19, 2010. The EEOC proposed to address the scope of the RFOA defense before finalizing its regulations concerning disparate impact under the ADEA.

In addition to these major regulatory initiatives, the EEOC already has signaled its intent to increase its focus on pay discrimination as part of a coordinated effort by the Departments of Justice, Labor and the Office of Personnel Management. An enhanced focus on systemic cases, combined with a General Counsel who is a seasoned litigator from a field office of the EEOC, and a significant budget increase for hiring attorneys and investigators, should lead employers to expect new and stepped-up avenues of enforcement, in addition to the policy changes from the regulations.

For more information, please contact the Seyfarth Attorney with whom you work or any Labor & Employment attorney on our website.