To the surprise of just about nobody in official Washington, President Obama last week made a recess appointment of radical Service Employees International Union (SEIU) General Counsel Craig Becker to the National Labor Relations Board. Senate Democrats were unable to overcome a Republican-led filibuster that kept Becker’s nomination, which had been approved by the Senate Education and Committee, from coming up for a floor vote, so the recess appointment of the controversial nominee had long been expected.
A “Wholly owned subsidiaries of the unions,” is how National Right to Work Committee President Mark Mix characterized Becker and fellow NLRB nominee Mark Pearce to me last year. Pearce, who serves on the board of directors of the Lawyers Coordinating Committee of the AFL-CIO, was also recess-appointed to the five-member NLRB, the 74-year-old independent regulatory agency that oversees relations between labor unions and employers in the private sector.
Becker, of course, is better known and more controversial. He has actually gone much farther than any union official by denouncing the notion that workers should have any say at all, either individually or collectively by secret ballot or even by “cared check,” as to whether or not they should be unionized. As he wrote in an article titled “Reconstructing the right to Organize” (New Labor Forum, Fall-Winter 1998), “At first blush, it might seem fair to give workers the choice to remain under-represented. But in granting this option, U.S. labor law grants employers a powerful incentive to campaign for a vote of no representation.”
Along with giving Democratic appointees an edge on the NLRB, the recess appointments of Becker and Pearce could have a dramatic impact on labor law. Conservatives fear that the Dana Corporation decision (2007) could be reversed.
The Dana Corporation ruling modified existing card-check provisions to permit decertification of a rival union petition within 45 days of recognition. Union officials regard this decision as an assault on card check and privately refer to the day it was handed down as “Black Monday.”
Other NLRB rulings that could be axed by the appointment of Becker and Pearce are the Brown University ruling (2004), which held that graduate students are not “employees” and thus not able to organize, the Register Guard decision (2007), in which the board said that the e-mail system is employer property from which union organizing activities may be excluded, and the Oakwood Health Care decision (2006), which broadened the definition of “supervisor” to include supervisory duties of workers to “assign” and “responsibly to direct.”
What is intriguing is that, in making the recess appointments of Becker and Pearce, the supposedly bipartisan Obama failed to give a recess appointment to Republican appointee Brian Hayes (by law the NLRB must have members of different parties).
So why should anyone care about this procedural maneuver?
“Because recess appointments last only until Congress adjourns at the end of 2011,” noted former NLRB Chairman Peter Kirsanow, a Bush appointee, “But if the Senate confirms Becker and Pearce in exchange for getting Hayes on board also, Becker and Pearce’s confirmed terms would be extended by approximately three more years—plenty of time for the Obama-controlled board to make a substantial imprint on labor law.”
Kirsanow also pointed out that the term of NLRB General Counsel Ron Meisburg (a Bush appointee) expires this summer. Given the general counsel’s authority to enforce NLRB rulings, Kirsanow concluded, “an Obama appointment to this position is likely to have a more immediate impact on everyday labor management relations than the Board member appointments.
The term of Republican appointee Peter C. Schaumber will also expire, giving the President another vacancy to fill and another opportunity to make this all-important panel what Peter Kirsanow dubs “the Obama Board.”
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