Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

• Chairman Wilma Liebman (D), whose term expires at the end of August 2011;
• Mark Schaumber (R), whose term expires at the end of August 2010;
• Craig Becker (D), whose recess appointment expires at the end of 2011;
• Mark Pearce (D), whose term expires at the end of August 2013; and
• Brian Hayes (R), whose term expires at the end of December 2012.

Hayes’s and Pearce’s confirmation comes after the Supreme Court ruled that the NLRB cannot act with only two members. Earlier this week, Obama named long-term NLRB attorney Lafe Solomon (pdf) to serve as the agency’s acting General Counsel (GC).  Earlier this month, current GC Ronald Meisburg announced his intention to step down before his term expires in August. The GC wields a significant amount of power, as it is he or she who determines which cases to put before the Board. According to the NLRB press release, Solomon began working for the agency as a Seattle field examiner in 1972, and served in a variety of positions on the GC and Board side of the agency, including staff attorney, before becoming Director of the NLRB’s Office of Representation Appeals, a job he has held for the last decade.

According to an NLRB press release, (pdf) Becker and Pearce also named their chief counsels. Becker – whose controversial academic writings have espoused admittedly radical changes to labor law – has named Peter D. Winkler as his chief counsel. Winkler has worked at the NLRB for more than 30 years, and has served as chief counsel to both Democrat and Republican Board members. Becker’s choice of Winkler could be seen as a deliberate move to appear more moderate than his past scholarly positions have indicated.

Fellow Democrat Pearce has selected Kent Y. Hirozawa as his chief counsel. Hirozawa is a labor-side attorney at a private law firm. Prior to entering private practice, Hirozawa worked as a field attorney for Region 2 of the NLRB.

Now that both Pearce and Becker have been sworn in, there remains only one vacant seat on the 5-member Board. Although Republican Brian Hayes has been nominated to fill that spot, he was not among the 15 people appointed during the recent recess. Other sitting NLRB members include Chair Wilma Liebman (D) and Peter Schaumber (R).

As for the EEOC, Berrien and Feldblum join Commissioners Stuart J. Ishimaru and Constance S. Barker. Victoria Lipnic, who was also given a recess appointment to be an EEOC Commissioner, will be sworn in later this month. Fellow recess appointee P. David Lopez is expected to be sworn in as EEOC General Counsel today.

Photo credit: Biffspandex.com

With the recess appointments of Becker and Pearce, the Democrats now hold a 3-1 majority on the Board. With a 3-1 edge, the focus shifts to the NLRB to advance the objectives of the Employee Free Choice Act, which has stalled in Congress. Whether it was legal to allow the only two sitting NLRB members to operate as a quorum is a question currently under review by the Supreme Court. Before the appointments, the Board consisted of Wilma B. Liebman, who Obama appointed as NLRB Chair in January 2009, and Peter Carey Schaumber, who was designated NLRB Chair in 2008 by former President George W. Bush.

With respect to the EEOC, Obama appointed Jacqueline A. Berrien to be the agency’s chair, Chai R. Feldblum and Victoria A. Lipnic to be EEOC commissioners, and P. David Lopez to be the agency’s general counsel.

Specifically, the letter highlights Becker’s “extensive, highly controversial” academic writings that, the senators claim, question his ability to be impartial. The senators allege that Becker’s writings “clearly indicate that he would use his position on the NLRB to institute far-reaching changes in labor law far exceeding the Board’s authority and bypassing the role of Congress.” In addition, the letter emphasizes the fact that as a lawyer for the Service Employees International Union (SEIU) and the AFL-CIO, Becker would be required to recuse himself from many cases before the NLRB due to a legal or ethical conflict.

The White House has not officially responded to this letter, nor given further indication of its intent regarding Becker’s appointment. If he is in fact appointed, Becker’s term would expire at end of the legislative session, unless the Senate votes to confirm him for a full five-year term.

Photo credit:  style-photographs

Becker, who serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the AFL-CIO, has been widely criticized in the business community for his admittedly provocative scholarly articles that strongly criticize existing labor law. While Becker tried to distance himself from these contentious positions during a hearing on his nomination, many in Congress and the business community have remained skeptical of his ability to remain impartial. In February, the Senate failed to pass a cloture vote on his nomination, seemingly ending the possibility that the Senate would ever confirm him. If Obama does appoint Becker during the upcoming break, his term would expire by the end of the next Congressional session (roughly the end of the next calendar year) unless the Senate confirms the appointment.

Becker’s fate seemed sealed after Republican Scott Brown was sworn in last Thursday as a Massachusetts senator, eliminating the Democrat’s 60-seat filibuster-proof majority. Any hope that at least one Republican would cross party lines to vote in Becker’s favor was all but lost when it was announced on Monday that Democratic Senator Ben Nelson (D-NE) opposed Becker’s nomination. In a press release, Nelson stated, “Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the Administration.” Nelson added that many of Becker’s positions he advocated in scholarly works “fly in the face” of Right to Work laws. Senator Blanche Lincoln (D-AR) joined Senator Nelson in opposing cloture on Becker’s nomination.

Senator Nelson highlighted some of the positions taken by Becker, including his belief outlined in a 1993 Minnesota Law Review article that “[o]n account of the asymmetry between representation elections in the workplace and the polity . . . employers should have no legally sanctioned role in union elections."  In this article Becker also suggested that employees should be compelled to join labor unions: “…it could be argued that industrial democracy should be made more like political democracy by altering the nature of the choice presented to workers in union elections. Such a reform would mandate employee representation, and the question posed on the ballot would simply be which representative.”

Although Becker testified at a hearing before the HELP Committee that such statements were intended to be provocative and that he would respect the role of Congress in creating labor law policy, many lawmakers and members of the business community have feared that Becker would try to implement his views through Board decisions or rule-making.

It is unclear when or if the Senate will vote on President Obama’s two other NLRB nominees, Mark Pearce and Brian Hayes. There has been some speculation that Becker could be seated by means of a recess appointment when the Senate adjourns for the Presidents Day recess. According to an article in The Hill’s Blog Briefing Room, Obama is not adverse to this possibility, saying: “If the Senate does not act to confirm these nominees, I will consider making several recess appointments over the upcoming recess, because we cannot allow politics to stand in the way of a well-functioning government.” If the President takes this route, the recess appointment would expire by the end of the next Congressional session, roughly the end of the next calendar year, unless the Senate confirms the appointment.

Photo credit:  MBPHOTO, INC.

In his opening statement, HELP Committee Chairman Sen. Tom Harkin (D-Iowa) acknowledged that much of the controversy surrounding Becker’s nomination stems from his academic writings that have taken a critical approach to existing labor law. As mentioned by Sen. Johnny Isakson (R-Ga.) – standing in for ranking minority member Mike Enzi (R-Wyo.) – Becker’s scholarly work advocated a new body of representation election rules to limit employer involvement, including the holding of so-called “captive audience” meetings. Becker told the Committee that these statements, as part of scholarly writings, were intended to be provocative, and that his stance on these issues as a member of the NLRB would be one of impartiality. In his statement, (pdf) Becker said: “I fully understand that, if confirmed, I will have a duty to implement the intent of Congress as expressed in the law, to consider impartially all views appropriately expressed to the Board. . .”

Isakson also sought assurances from Becker that he would respect current law, and would not try to make the dramatic changes included in the Employee Free Choice Act (EFCA) through the NLRB. To back up his concerns, Isakson brought up the recent proposed rule by the National Mediation Board (NMB) that seeks to change 75 years of representation election policy by basing the election outcome on the majority of those who actually vote instead of the long-held policy of basing the results on the majority of employees eligible to vote. Isakson said that before confirming two nominees to the current NMB, they assured him that they would take time to consider and investigate any potential change in policy. Instead, he claims, the NMB proposed the new election policy within two weeks of confirmation. During his testimony, Becker acknowledged that any changes to election certification rests with Congress, not with the NLRB.

Sen. John McCain (R-Ariz.) – the senator whose hold on Becker’s nomination forced the Senate to return his nomination to the White House for reconsideration – asked whether Becker would recuse himself if a mattering involving Becker’s current employer, the SEIU, came before the NLRB. In response, Becker said that he would do so for two years after his confirmation, an answer that McCain deemed “not good enough.” McCain also questioned Becker about his involvement in extending collective bargaining rights to homecare workers in Chicago. Becker explained that at one point he did counsel then-Illinois Governor Rod Blagojevich and his staff regarding legislation on this topic.

The HELP Committee is scheduled to vote on Becker’s nomination at 10:00 on Thursday. Assuming Becker’s nomination is approved by this committee, it is expected that his proponents will try to send his nomination to the Senate floor for a final vote before Republican Scott Brown is sworn in on February 11 in an attempt to prevent a potential filibuster of the nomination.

It is unclear whether Becker’s nomination will face a similar fate this time around. To complicate the matter, the NLRB is currently operating with only two members. Whether the traditionally five-member Board has the authority to decide cases with only two sitting members is an issue the U.S. Supreme Court will determine this term in New Process Steel v. NLRB. At stake in this case are hundreds of Board decisions. It is believed that if the Supreme Court effectively invalidates those two-member decisions, a full Board would simply re-issue those opinions. The failure of the three NLRB nominees to be confirmed, however, will necessarily impact this strategy.

Of Obama’s three NLRB nominees, Becker has garnered the most controversy. Senators Orin Hatch (R-Utah) and John McCain (R-Ariz.) have both strongly expressed their opposition to Becker’s nomination, as have many in the business community. Sen. McCain had stated that he planned to put a hold 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 have voiced concern that Becker, who is a proponent of the Employee Free Choice Act (EFCA), would be willing to use Board decisions to effectively institute parts of the proposed act.

Obama’s other nominees to serve on the NLRB – Mark Pearce and Brian Hayes – have not yet been considered. In October, the Senate Committee on Health, Education, Labor and Pensions voted to approve all three nominations. The intent was to send all three nominations to the Senate floor for consideration, a decision that was not widely received by business advocates, as it would have limited the Senate’s ability to evaluate Becker individually. It is uncertain at this point whether President Obama will choose to re-nominate Becker to the NLRB, make a recess appointment, or scrap his nomination entirely.

Photo credit: MBPHOTO

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.

Arbitration

Senator Russ Feingold (D-WI) has reintroduced the Arbitration Fairness Act (S. 931), a bill that would render unenforceable predispute agreements mandating arbitration of employment, consumer, franchise or civil rights claims.

Business Restructuring

The recently-introduced Alert Laid off Employees in Reasonable Time (ALERT) Act (H.R. 2077) would require employers to provide Worker Adjustment Retraining Notification (WARN) Act notices to employees in the event of mass layoffs that occur at more than one worksite, and would double the penalties for violations.

Congressional Leadership

Senator Arlen Specter (R-Pa) recently announced his intent to run for reelection as a Democratic in the 2010 primary, bringing Democrats closer to a filibuster-proof majority.

Discrimination in the Workplace

The Fair Pay Act (S. 904, H.R. 2151) was reintroduced in both the House and Senate. This bill would amend the Fair Labor Standards Act (FLSA) by introducing the concept of equal pay for comparable – not equal – work.

Immigration

Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced the H-1B and L-1 Visa Reform Act (S. 887), legislation that would completely reform the H-1B and L-1 visa guest worker programs.

Labor-Management Relations

The Department of Labor’s (DOL) Office of Labor-Management Standards (OLMS) has announced that it plans to issue a notice of proposed rulemaking regarding revisions to the Labor Organization Officer and Employee Report (LM-30) financial disclosure form.

Meanwhile, the U.S. Court of Appeals for the District of Columbia Circuit has held that the National Labor Relations Board acted without authority in entering an order against a company for alleged unfair labor practices, as the two-member panel did not constitute a quorum as required by the National Labor Relations Act.

Work/Family Balance

Two bills were introduced this week that seek to amend the Family and Medical Leave Act (FMLA) and its regulations. The Family and Medical Leave Restoration Act (H.R. 2161) would essentially nullify the new DOL regulations, restore prior ones, and direct the Secretary of Labor to revise additional regulations under this Act. The Family and Medical Leave Inclusion Act (H.R. 2132) would amend the FMLA to permit eligible employees to take up to twelve weeks of unpaid leave to care for a same-sex spouse, domestic partner, parent-in-law, adult child, sibling or grandparent who has a serious health condition.

Workplace Safety

Employers are advised to establish a workplace safety plan to specifically address the public health emergency surrounding the swine flu outbreak.  On April 29, 2009 the World Health Organization (WHO) raised the pandemic alert level to Phase 5, with Phase 6 indicating that a global pandemic is under way.

In legislative news, the Protecting America’s Workers Act (PAWA) (H.R. 2067), a bill that would amend the Occupational Safety and Health (OSH) Act by expanding its coverage, increasing whistleblower protections, and enhancing employer penalties for violations, was reintroduced.  Additionally, on April 28, both the House and Senate conducted hearings to address the adequacy of employer incentives for maintaining safe workplaces and penalties for violating OSH laws. Lawmakers in both chambers stressed the need for OSH reform.

Currently, Craig Becker serves as Associate General Counsel to both the Service Employees International Union (SEIU) and the American Federation of Labor & Congress of Industrial Organizations. Becker was part of Obama’s transition team, acting as a member of the Agency Review Team overseeing the Department of Labor. According to an entry posted on the National Association of Manufacturers’ ShopFloor, Becker is believed to have authored one of the labor-related executive orders issued on January 31, Notification of Employee Rights Under Federal Labor Laws. (pdf)

Becker earned both his law school and undergraduate degrees from Yale in 1981 and 1978, respectively. For the past 27 years, Becker has taught and practiced labor law. In 2007, Becker represented the plaintiff in Long Island Care at Home, Ltd. v. Coke, 127 S.Ct. 2339 (2007), in which he argued (unsuccessfully) that the Supreme Court should overturn a Labor Department regulation exempting home-care aides employed by third-party companies from federal minimum wage and overtime coverage. Becker has also written a number of labor-related articles, including Representing Low-Wage Workers in the Absence of a Class: The Peculiar Case of Section 16 of the Fair Labor Standards Act & the Underenforcement of Minimum Labor Standards published in the spring 2008 edition of the Minnesota Law Review, and Neutrality Agreements Take Center Stage at the National Labor Relations Board published in the Labor Law Journal.

Mark Pearce has also practiced union-side labor law for a large portion of his career. In 2008, the New York State Governor appointed Pearce to serve as a board member on the NYS Industrial Board of Appeals, an independent, quasi-judicial agency in charge of reviewing certain rulings and compliance orders issued by the NYS Department of Labor. According to his law firm’s bio, Pearce has also served on the Board of Directors of the Lawyers Coordinating Committee of the AFL-CIO, and is a member of Cornell Adjunct Faculty -Upstate, New York State United Teachers Local # 37-950, an affiliate of American Federation of Teachers (AFL-CIO). Pearce has taught courses at Cornell University’s School of Industrial and Labor Relations Extension Program, and is a Fellow in the College of Labor and Employment Lawyers. Pearce received his law degree from the State University of New York, and his undergraduate degree from Cornell University.