While Hurricane Irene churned up the East Coast this weekend, quieter, albeit significant changes were taking place at the National Labor Relations Board. Long-time Board member and Chairman Wilma Liebman’s term expired on Saturday, August 27. Fellow Democratic member Mark Gaston Pearce has been designated as the new Board Chairman. The remaining members include Brian Hayes, a Republican, and Craig Becker, a Democrat, whose recess appointment expires at the end of this year and will not likely be confirmed for a full term. The vacancy left when Republican member Peter Schaumber left the Board after his second term expired in August 2010 has yet to be filled. In January 2011, President Obama nominated Terence F. Flynn – who currently works as Hayes’ Chief Counsel – to fill that vacancy. Senate action on Flynn’s nomination, however, is still pending. The probable result of these changes will be that the Board will be left with only two acting members come January 2012. Continue reading this entry at Littler's Labor Relations Counsel.
The National Labor Relations Board (NLRB) and the Equal Employment Opportunity Commission (EEOC) moved a step closer to full capacity this week when Craig Becker and Mark Pearce were sworn in as NLRB members, and Jacqueline A. Berrien and Chai Feldblum assumed their positions as Chair and Commissioner, respectively, at the EEOC. These individuals were among the 15 recess appointments made over the recent legislative break.
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
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.
The following is a summary of the legislative and regulatory news for the week of April 26, 2009:
President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board), and Alejandro Mayorkas to serve as the director of the U.S. Citizenship and Immigration Services (USCIS).
In addition, labor advocate and founding executive director of the American Rights at Work (ARW) Mary Beth Maxwell is joining the Department of Labor (DOL) as a senior advisor to Secretary of Labor Hilda Solis.
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.
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.
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.
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.
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.
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.
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.
President Obama has announced his plans to nominate Craig Becker and Mark Pearce as board members of the National Labor Relations Board (NLRB or Board). The five-member Board serves as a quasi-judicial body in deciding cases under the National Labor Relations Act (NLRA). 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 other party. Becker and Pearce, along with Chairwoman Liebman, would constitute the three Democratic-selected seats. Assuming President Obama follows precedent, only one Republican Board seat will remain vacant. When and how that seat will be filled is not clear.
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.