This week the National Labor Relations Board (NLRB) officially starts the Era of Obama, with the President’s recess appointments of two new members to the board, Craig Becker and Mark Pearce.
First of all, none of the members of the NLRB are in the band No Doubt but the picture works so that’s that.
A bit of background if you’re new to the topic. The NLRB was created by the National Labor Relations Act when it passed in 1935 as part of President Roosevelt’s New Deal legislation. The board consists of five members appointed by the president and normally confirmed by the Senate. By tradition, the board is made up of two Democrats and two Republicans and the chair is selected by the president. So a full, five-member board contains three members of the president’s party and two of the opposition.
Becker and Pearce join Peter Schaumber and Wilma Liebman. Liebman was made chair of the board by President Obama on January 20, 2009 shortly after he was sworn in as President of the United States. Both Schaumber and Liebman are attorneys and former labor arbitrators with deep experience in resolving labor disputes. Liebman was originally appointed by President Clinton in 1997 and reappointed by President Bush in 2002. Schaumber was appointed by President Bush in 2005. Both were confirmed by the Senate.
With these two recess appointments, the NLRB now has a 3-1 pro-labor composition with one vacancy still remaining. In the absence of another Republican nominee when Schaumber’s term expires in August, the NLRB will be comprised entirely of former union-side labor attorneys.
Last month the Senate rejected the nomination of Becker in a bipartisan vote of 52 to 43. Then last week, all 41 Senate Republicans wrote to President Obama urging him not to use a recess appointment to place Becker on the board over the objection of the Senate. This week, with the congress adjourned, the President did just that; he placed Becker on the board in spite of his rejection by the full Senate and over the appeal of the Senate minority. Bold? That is one word for it.
Becker is a controversial appointment because he was the associate general counsel to the Service Employees International Union (SEIU) who appear frequently before the board. In his capacity as the union’s lawyer he has been an aggressive pro-labor activist as you would expect. The SEIU has had some very serious leadership problems in the last two years complete with internal battles for control of the union and allegations of financial impropriety. SEIU president Andy Stern is very close to the President and has been the White House’s most frequent guest since the Obama’s moved in last year. During Becker’s tenure with the union, the SEIU was linked to the now-tainted ACORN organization who will likely file for bankruptcy according to most observers and news reports.
In sum, Becker is not the typical appointment to fill a seat on the NLRB. Particularly as a recess appointment over the objection of the Senate. The NLRB is typically less demagogic and more technocratic in its composition, the intentional partisan divisions notwithstanding.
Becker’s confirmation hearings also drew scrutiny for an article he published in the Minnesota Law Review in 1993. Becker’s thesis in that piece was that employers do not have an interest in the outcome of union elections. The implication is that the legal protection afforded to employer speech during union organizing campaigns is misplaced. With his appointment to the board then, those protections may be lost and that should be of interest to every employer. Becker’s position on employer speech puts him far to the left of the current law, but as we know, the rules governing union organizing ebb and flow like the tides.
None of this should change the way anyone communicates during a union organizing campaign or contract bargaining. Companies that we represent will continue to be honest and forthright in the way they engage their employees and other stakeholders. They should work to earn the credibility and respect as the preferred source of information and they should take care to respect the law and the interests of their people, their customers and the communities in which they work.
So, the lingering question is whether the NLRB’s Era of Obama will bring more challenges to our employer-clients, more political controversy and more labor drama? In my view, there is No Doubt.