In a much anticipated and controversial move, President Obama announced on March 27, 2010 that he will appoint Democrats Craig Becker and Mark Pearce as members of the National Labor Relations Board (“NLRB”).
Becker, Pearce, and a third candidate, Republican Brian Hayes, were first nominated by Obama to fill the three vacant positions on the five-member NLRB in July 2009. However, the nominations stalled in the Senate, primarily due to Republican concerns over the nomination of Becker. Becker has been an in-house attorney for the Service Employees International Union (SEIU) since 1990, an AFL-CIO staff counsel since 2004, and is a law professor. In a letter written last week, all 41 Republican senators urged Obama not to issue a recess appointment for Becker because his past work as legal counsel for the SEIU and AFL-CIO “indicate(s) that he could not be viewed as impartial, unbiased, or objective.” Similarly, the U.S. Chamber of Commerce issued a statement calling Becker’s appointment a “special interest payback” for unions, and warned “the business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to complete.”
Pearce, the other recess appointment to the NLRB, is a founding partner of Creighton, Pearce, Johnson & Giroux, a labor-side labor and employment law firm in Buffalo, NY.
Obama justified the recess appointments of Becker and Pearce in an announcement stating that the Senate has “the responsibility to approve or disapprove of my nominees. But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”
Becker’s and Pearce’s recess appointments will last until the end of the 2011 congressional term. They will join the two existing NLRB members, Chair Wilma B. Liebman (Democrat) and Peter Schaumberg (Republican). The fifth NLRB position, which is slated to be filled by a Republican, remains unfilled.
Now that the Democrat appointees hold a 3-to-1 majority on the NLRB, employers should be on guard for some radical, pro-union changes in decisions handed down by the NLRB, which historically has had little regard for the precedential value of its earlier decisions.