Coming one day after the U.S. Congress adjourned for the Easter recess, President Obama announced the recess appointments of Craig Becker and Mark Pearce to the National Labor Relations Board1 on March 27. While the recess appointments, which do not require Senate approval, are not for the full five-year terms on the NLRB, Becker and Pearce would serve for approximately 18 months, more than enough time to have a significant impact on labor relations in our country. Each are also eligible for a full five-year term if the Senate would confirm their nomination.
These two recess appointees will join Wilma Liebman, the current chair, to give the four-member NLRB a three-member Democratic majority of former union-side lawyers. The lone Republican currently serving on the Board is former arbitrator Peter Schaumber, whose term expires on August 27. The fifth member position is currently vacant. The term of current NLRB General Counsel Ronald Meisburg, a Republican, also expires in August.
Craig Becker is currently Associate General Counsel of the SEIU, and Associate General Counsel to the AFL-CIO. Becker also helped spearhead Illinois state law changes that resulted in the mass unionization of home care workers in that state. He has argued that the NLRB has the right to implement Employee Free Choice Act-like changes without an act of Congress.
Mark Pearce currently represents unions after serving as an attorney for the NLRB, and is one of the founding partners of the Buffalo law firm Creighton, Pearce, Johnsen & Giroux. There he practices union-side labor and employment law before state and federal courts and agencies.
The Organization’s Authority
Filling two of the Board’s vacancies with recess appointments now gives the Board time to achieve significant labor law reform through rulemaking without congressional action on the Employee Free Choice Act, which is unlikely to pass any time soon. Under current law, the NLRB, without Congress, may enact significant changes in the application of the law through administrative rulemaking and case-by-case decision making. It did so, for example, when it ruled on the appropriate bargaining unit for acute care hospitals, a ruling which had the effect of accelerating the timeline for union elections within that industry. Board action could be used to streamline and accelerate election procedures, expand union “access” to employees through electronic and other means and enhance special remedies and penalties for employer unfair labor practices in initial organizing and first contract situations, all goals of the union-championed EFCA which remains stalled in Congress at this time.
The Political Backdrop
Over the past 75 years, the NLRB has endured multiple shifts in agency doctrine, depending upon the ideology of the incumbent administration. The Board is comprised of five members, appointed by the President to serve overlapping five-year terms. Traditionally, two of those members arrive with management backgrounds, while two more are aligned with organized labor. The fifth seat is used by the incumbent President to create a majority favorable to the Administration’s point of view.
Absent additional appointments in the interim, the Board will soon be reduced to a narrow quorum of three Democratic members with powerful ties to organized labor for the first time in nearly 70 years, thereby depriving it of dissenting opinions necessary to provide reviewing courts with an alternative viewpoint. Business groups quickly responded to the news with expressions of concern, and politicians quickly followed suit. A spokesman for the U.S. Chamber of Commerce said that the business community “should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.”
Mr. Becker had been a lightning rod for criticism recently. Much of this has emanated from the U.S. Chamber of Commerce, numerous trade associations, and other members of the business community. All 41 Republican Senators have signed a letter urging a bipartisan alternative to the use of a recess appointment to fill the Board vacancies.
The controversy surrounding Becker’s appointment reached its peak through a publicized effort led by Senator John McCain to block his Senate confirmation, resulting in a 52-33 vote that ultimately ground his confirmation effort to a halt through conventional means. His subsequent recess appointment effectively constitutes an “end run” around any further Congressional dialogue on the issue.
A newly reconfigured Board will soon begin the review of approximately 200 pending cases, many of which have broad ramifications beyond the parties involved. From there, the NLRB is expected to consider additional cases in controversy that may provide for the reversal of those doctrines that run counter to the pro-union leanings of the new majority.