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With Obama’s appointments, a new course for NLRB?

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in Employee Benefits Program,Employment Law,Human Resources,Leaders & Managers,Management Training

President Obama in late March announced the recess appointments of attorneys Craig Becker and Mark Gaston Pearce to fill two vacancies on the National Labor Relations Board (NLRB), breaking a more than two-year-old logjam in which the NLRB consisted of only two members.

While the new members may speed up the board's work, critics say Becker's appointment in particular will tip the NLRB’s balance to heavily favor unions instead of employers. Before joining the NLRB, Becker was associate general counsel to the Service Employees International Union and the AFL-CIO.

Becker has been a lightning rod for criticism ever since President Obama first nominated him to join the NLRB in April 2009. The Wall Street Journal called him “labor’s secret weapon.”

He was opposed by the U.S. Chamber of Commerce, the National Association of Manufacturers and other pro-business organizations that testified against him in Senate hearings earlier this year.

In February, the Senate voted 52-33 to confirm Becker—which in the new math of a partisan Senate was not enough. He needed 60 votes to overcome a promised Republican filibuster.

At the time, Obama hinted that he might invoke his Constitutional right to make crucial appointments on his own while Congress is in recess. He didn't do so during the President's Day recess in February. But he also didn’t rule out taking action when Congress adjourned for its Easter recess on March 25.

On March 27, he announced Becker's and Pearce's appointments.

A short-handed board

The seating of Becker and Pearce brings the board to four members, with one remaining vacancy. Chairman Wilma Liebman and Peter Schaumber have acted as a two-member board for 27 months, beginning in January 2008.  During that time, they decided 595 cases, but had to shelve many because they couldn’t agree.

Liebman was appointed by Obama last year. Schaumber was appointed by President George W. Bush, and served as NLRB chair from March 2008 to January 2009.

Pearce’s appointment stirred little of the controversy Becker’s did. A labor and employment law attorney from Buffalo, Pearce is generally viewed as a centrist who won’t tilt too heavily toward either employers or organized labor.

Unprecedented access for organizers?

Editorials arguing against Becker’s confirmation pointed to a law review article he wrote in 1993 that said, “Just as U.S. citizens cannot opt against having a congressman, workers should not be able to choose against having a union….”

In fact, Becker has written in favor of new rules that some say would severely compromise employers’ ability to argue against unionization of their workforces, limiting anti-union speeches and literature and allowing unprecedented workplace access for union organizers.

In confirmation hearings in January, Becker dismissed those sentiments as “the views of a scholar” and said he would follow Congress’ intent when asked to interpret the National Labor Relations Act.

EFCA’s author now on board

As a union lawyer, Becker helped author the controversial Employee Free Choice Act (EFCA). Those who oppose Becker’s appointment fear that a union-leaning NLRB could use its power to grant even more influence to organized labor than EFCA would.

“Becker’s appointment could literally reverse 30 years of NLRB precedent,” said David Rittof, an employee relations expert who tracks labor-management issues. “He argues that employers don’t legitimately have a role to play in whether their workforces are unionized. It would be very, very difficult for employers if he is confirmed.”

The National Labor Relations Board is an independent federal agency charged with safeguarding employees' rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private-sector employers and unions.

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