WASHINGTON — While the prospect for labor-law reform through the Employee Free Choice Act appears to have subsided, new concern is arising as a result of President Obama's newest appointee to the National Labor Relations Board.
Business groups including the National Grocers Association, the Retail Industry Leaders Association and Food Marketing Institute have expressed concern that Craig Becker, who was appointed to the NLRB late last month, could pursue an agenda resulting in costly new burdens on business and energized union organizing activity. They also suggested the appointment could chill the beginnings of an economic recovery.
The National Labor Relations Board is a federal agency created by Congress in 1935 to administer the National Labor Relations Act, the primary law governing relations between unions and employers in the private sector. Although its full complement is five members, the board has been staffed by only two members for more than 18 months as a result of battles between the White House and Congress over Obama's board nominees (and prior to that, Democratic-controlled Congress failing to confirm George W. Bush appointees). Becker was nominated to fill a vacancy last July but was rejected by the Senate earlier this year.
Becker's appointment — along with a second Democratic NLRB nominee, Mark Pearce — were among a slate of “recess appointments” not requiring congressional confirmation the Obama administration made over the Easter congressional break. The president defended the action noting that his appointees “have faced an unprecedented level of obstruction in the Senate.” The appointees would serve until the current Congress adjourns at the end of 2011, but their terms could be extended.
Business groups expressed particular concern over the appointment of Becker, who currently serves as associate general counsel to both the Service Employees International Union and the AFL-CIO, and whose writings and prior advocacy suggest a bias against employers, the business groups said. The RILA, representing big-box retailers, described Becker as a “radical union lawyer” with “an outspoken desire to limit employer rights.”
NGA President Thomas Zaucha, in a letter urging Obama not to nominate Becker, said the NGA believes Becker “would seek to implement the goals of the so-called Employee Free Choice Act through rules and enforcement actions of the National Labor Relations Board, even if the legislation is never enacted by Congress.”
Business groups including NGA, FMI and others strongly opposed EFCA, proposed legislation that among other things would have made it easier for employees to organize into unions and impose stiff penalties for employers shown to have violated labor law. The measure, introduced a year ago by Sen. Tom Harkin, D-Iowa, is considered “dead in the water” after changes in the Congressional makeup and a long battle for health care reform, political experts say. But changing the makeup of the NLRB has led to concerns that those provisions could be met administratively.
“[Becker's] writings clearly indicate that he would use his position on the NLRB to institute far-reaching changes in the law that would not merely interpret existing law, but would bypass the role of Congress in setting national labor policy,” according to a coalition of 18 business groups including FMI, the U.S. Chamber of Commerce and the National Retail Federation, in a letter to President Obama opposing the nomination.
An FMI spokeswoman declined further comment last week.
PAST WRITING
Becker's opponents cite the appointee's 1993 writing in the Minnesota Law Review in which he reportedly argued that employers “should be stripped of any legally cognizable interest in their employees' election of representatives.” Becker, however, testified in a recent Senate hearing that as a member of the NLRB he would be bound by existing law and sought to distinguish opinions he expressed as a scholar with obligations he would have as a board member.
The new appointments come at a crucial time for the NLRB, which has been compromised by its small staff and had some of its recent decisions challenged on the basis of its having just two members: Wilma Liebman, its Democratic chairman, and Peter Schaumber, a George W. Bush appointee whose term is to expire in August. The board has typically been made up 3-2 in favor of the current administration's party.
Obama has previously nominated Brian Hayes, a Republican currently serving as a labor policy director for the U.S. Senate Committee on Health, Education, Labor and Pensions. Hayes was not among Obama's recess appointments.
Tom Wenning, general counsel to NGA, in an interview with SN last week, said NGA would redouble efforts to educate its members on responding to organizing efforts, which he predicted would be energized by the revamped board.
“We need to educate our members on what are the appropriate things they can do in response to a union organizing campaign and what their rights will be in terms of communicating to their employees,” he said. “I think we can anticipate that organized labor will be more energized as a result of these appointments and will be engaging in aggressive union organizing campaigns.”
