On Saturday, March 27, 2010, President Obama bypassed the Senate and made 15 recess appointments to key administration posts, including positions at the National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC).
National Labor Relations Board
Included among the appointees was union attorney Craig Becker, whose nomination to the NLRB has generated widespread controversy and prompted strong opposition from employers. Becker worked as an associate general counsel for the SEIU since 1990, as staff counsel for the AFL-CIO since 2004, and has taught and written extensively about labor law. Becker’s views, including his position that employers should have no role in union organizing campaigns and representation elections, have raised concerns that he would circumvent Congress by implementing portions of the proposed Employee Free Choice Act (EFCA) through NLRB decisions.
Although his nomination was initially approved by the Senate Health, Education, Labor and Pensions Committee, Senator John McCain (R-Ariz.) placed a hold on the nomination, causing the Senate to send the nomination back to the White House at the end of the 2009 session. President Obama re-nominated Becker earlier this year, but in February the Senate voted to block the appointment. Opposition to Becker’s appointment remained strong amid talk of a possible recess appointment, and just two days prior to the appointment, all 41 Republican senators in an open letter to the President urged him to withdraw Becker’s nomination. As expected, union leaders embraced the appointment and praised Becker’s qualifications for the position.
In addition to Becker’s appointment, the President also named Mark Pearce, a New York labor lawyer and union side advocate, to fill the fourth seat on the NLRB. With these appointments, the NLRB—operating with a Democratic majority for the first time since 2001—is poised to reconsider several decisions from the last decade which are largely viewed as pro-management, including the following:
- Voluntary Recognition: The NLRB has held that an employer’s voluntary recognition of a labor organization does not bar a decertification petition or an election petition by a rival union that is filed within 45 days of a notice to employees regarding voluntary recognition. This holding was based on the NLRB’s determination that card check is not as reliable an indicator of employee preferences as an NLRB-conducted election, and thereby undermined the popularity of the neutrality/card check agreements increasingly used by organized labor and endorsed under the proposed EFCA. This precedent is likely to be among the first cases targeted for reversal under the new NLRB.
- Email Solicitation: In 2007, the NLRB found that an employer could lawfully bar employees from using its e-mail system for non-work related purposes, unless the employer enforced the policy to discriminate against union activity. It specifically ruled that an employer does not need to permit union communication even if it allows communication for other personal matters, as long as the distinction made by the employer is not simply to prohibit union activity. Chairman Wilma Liebman dissented from this position, and her views likely are shared by recent appointees Pearce and Becker.
- Supervisory Status: In 2006, the NLRB issued new guidance for determining whether an individual qualified as a statutory supervisor exempt from the protections of the NLRA. Central to the NLRB’s analysis was its application of the terms “assign,” “direct” and “independent judgment” – terms that are explicitly included in the NLRA’s definition of “supervisor.” A much narrower interpretation was advocated by the dissent, which could become the prevailing view under the Obama NLRB.
- Weingarten Rights for Non-Represented Employees: In 2004, the NLRB overruled Clinton-era precedent to hold that the Weingarten right to union representation at an investigatory interview does not extend to employees who are not represented by a union. The Obama NLRB may reverse course yet again, and allow nonunion employees to be represented by coworkers or others at a meeting the employees believe may possibly result in disciplinary action.
Equal Employment Opportunity Commission
President Obama also made the following recess appointments to the EEOC:
- Jacqueline Berrien, who has served as counsel for the NAACP Legal Defense and Educational Fund as well as staff attorney with the Lawyers’ Committee for Civil Rights and the American Civil Liberties Union, was named Chair of the EEOC.
- Chai Feldblum, a professor at Georgetown University Law Center since 1991, was named Commissioner of the EEOC. Feldblum also previously worked as Legislative Counsel to the AIDS Project of the ACLU where she assisted with drafting the Americans with Disabilities Act of 1990.
- Victoria Lipnic, who is of counsel in the Washington, D.C. office of Seyfarth Shaw LLP, was named Commissioner of the EEOC. Lipnic served as the U.S. Assistant Secretary of Labor for Employment Standards between 2002 and 2009 and also worked as counsel to the Republican members of the U.S. House of Representatives Education and Labor Committee.
- P. David Lopez, who has spent 13 years in the field and at headquarters for the EEOC, was named General Counsel of the EEOC. He most recently served as a Supervisory Trial Attorney with the EEOC’s Phoenix District Office, and during his tenure has tried several cases on behalf of the EEOC involving a wide variety of legal theories.
The appointees join current EEOC members Stuart Ishimaru and Constance Barker, both of whom were originally appointed by President Bush. The EEOC appointees had been approved by the Senate Committee in early December 2009, but their conformation had been placed on indefinite hold by a lone, unidentified Senate Republican.