NLRB Issues New Order Anticipating the Loss of One or More Members as Concern Mounts over Potential Hayes Resignation

Posted on November 29, 2011 by Labor Management Relations Practice Group

The National Labor Relations Board has issued a new order temporarily delegating administrative authority over certain agency matters to the General Counsel (GC) and Board Chairman in the event the Board is left with fewer than three sitting members. In last year’s New Process Steel opinion, the Supreme Court held that the National Labor Relations Act requires that the Board operate with at least three members in order to exercise its full authority. When Member Craig Becker’s term expires at the end of the year, the Board will be left with Chairman Pearce (D) and Member Brian Hayes (R), assuming the Senate does not confirm additional members and the President is unable to make any recess appointments by that time. There also has been speculation that Member Hayes might resign to prevent the remaining members from finalizing contentious Board rules.  Continue reading this entry at Littler's Labor Relations Counsel.

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HELP Committee Votes to Send All Three NLRB Nominees to Senate Floor

Posted on October 22, 2009 by Jay Sumner

Despite a great deal of protest from several Republicans and the business community, the Senate Committee on Health, Education, Labor and Pensions (HELP) voted 15 to 8 to approve the nominations of Craig Becker, Mark Pearce, and Brian Hayes to be members of the National Labor Relations Board (NLRB). President Obama named Pearce and Becker, both Democrats and widely considered pro-labor, as nominees on April 24 of this year. Hayes, a Republican and Senate committee staff member, was selected on July 9. Now that these nominations have cleared the HELP committee, they will be sent to the Senate floor as a package for final approval.

Controversy surrounding these selections has focused primarily on Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations. Pearce – who has practiced union-side labor law for much of his career – has not garnered nearly as much controversy. Both on the eve of the committee vote and previously, a number of business groups called for a hearing on Becker’s nomination. Among other criticisms of Becker, the U.S. Chamber of Commerce and other groups have highlighted an article published in 1993 in the Minnesota Law Review in which Becker claimed that “employers should be stripped of any legally cognizable interest in their employees’ election of representatives.” Others fear that Becker, who is a proponent of the Employee Free Choice Act (EFCA), will be willing to use Board decisions to effectively institute parts of the proposed act.

Senators Orin Hatch (R-Utah) and John McCain (R-Ariz.) have both strongly expressed their opposition to sending the three nominations as a package to the Senate floor (presenting the three individuals as a package limits the chances that the Senate will evaluate Becker on an individual basis). Sen. McCain has already stated that he plans to put a hold on Becker’s nomination, and Sen. Hatch submitted a statement on the record condemning Becker’s selection.
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Legislative and Regulatory News for the Weeks of July 5 & 12

Posted on July 18, 2009 by Governmental Affairs Team

The following is a summary of the employment- and labor-related legislative and regulatory news for the weeks of July 5 and July 12, 2009:

Agency Changes

Obama announced his intent to nominate Jacqueline Berrien as Chair of the Equal Employment Opportunity Commission (EEOC).

Brian Hayes was nominated to be a Member of the National Labor Relations Board (NLRB). His nomination – along with those of the other two NLRB nominees – were sent to the Senate for consideration.

The Department of Labor’s Employment Standards Administration (ESA) will be abolished, and the leaders of the four sub-agencies within the ESA will report directly to the Secretary of Labor.

EFCA

Democratic senators may be dropping the “card check” provision in EFCA in order to gain support for its passage.

Health Care

House Democrats formally unveiled their 1,018-page healthcare overhaul bill, which the House Committees on Ways and Means and Education and Labor passed on July 17.  Meanwhile, the Senate Committee on Health, Education, Labor and Pensions voted to approve the Senate healthcare package.

In other health care news, Rep. Paul Hodes (D-NH) introduced the Small Business Health Care Affordability Act of 2009, a bill that would provide small businesses and their employees with tax credits for health insurance coverage.

Immigration

The Senate voted to accept amendments to the Department of Homeland Security’s (DHS) appropriations bill that would prevent the DHS from revoking its “No-Match” rule, and make E-Verify and the EB-5 visa programs permanent.

Labor-Management Relations

Proposed regulations implementing Obama’s Executive Order promoting the use of Project Labor Agreements (PLAs) were published in the Federal Register. Meanwhile, the Office of Management and Budget (OMB) issued a memo to government agencies encouraging the use of PLAs until a final rule is implemented.

Work/Family Balance

Rep. Lynn Woolsey (D-CA) introduced the Balancing Act of 2009, a comprehensive working family bill that incorporates a number of previously-introduced family and medical leave legislation.

Rep. Ron Wyden (D-OR) introduced the Military Family Leave Act of 2009, a bill that would grant family members of uniformed service members temporary annual leave for the member’s deployment.

Sen. Patty Murray (D-WA) introduced the Airline Flight Crew Technical Corrections Act, a bill that would change FMLA hours of service requirements for airline employees.
 
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Obama Nominates Brian Hayes as Member of the NLRB

Posted on July 13, 2009 by Jay Sumner

President Obama has announced his nomination of Brian E. Hayes, Republican Labor Policy Director for the U.S. Senate Committee on Health, Education, Labor and Pensions (HELP), to be a Member of the National Labor Relations Board (NLRB or Board). If confirmed, Hayes would join current member Peter Schaumber as the second Republican to serve on the five-member Board. Board Members are appointed to five-year terms, with the term of one member expiring each year. The Board traditionally consists of three members selected by the party controlling the White House, and two from the opposing party. In April, Obama named Democrats Craig Becker and Mark Pearce as his other picks to fill the three vacant seats. Current NLRB Chairman Wilma Liebman is also a Democrat. On July 9, the White House sent the nominations of Becker, Pearce and Hayes to the Senate for confirmation.

According to information provided by the White House announcement, before serving as a Senate staffer, Hayes worked for 25 years in private practice as a management-side labor and employment attorney. Prior to entering the private sector, Hayes clerked for the Chief Judge of the National Labor Relations Board and then as Counsel to the Chairman of the NLRB. While working in private practice, Hayes taught classes in Labor Law, Collective Bargaining, Arbitration and Employment Litigation at Western New England Law School. Has earned his undergraduate degree at Boston College and his law degree from Georgetown University Law Center.

It is not yet clear when confirmation proceedings will occur, or whether the three pending nominees will be considered as a package or individually.

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