The Building Tradesman Newspaper

Friday, November 06, 2009

‘NLRB nominees one step closer to full OK

By The Building Tradesman

WASHINGTON (PAI) – President Barack Obama’s three nominees –  two Democrats and one Republican – to fill vacant seats on the National Labor Relations Board are one step closer to sitting in those chairs.

And when they do take their places, the board, under a legal cloud for almost two years about whether it could decide anything – whom unions can represent, who wins representation elections and more – will be at its top level back in business. 

Two of Obama’s NLRB nominees, pro-worker Democratic labor lawyer Mark Pearce of New York, and Republican Brian Hayes of Massachusetts, were unanimously approved by the Senate Health Education Labor and Pensions Committee on Oct. 21, following a hearing that morning. 

But the third, Harold Becker of Illinois – the other Democrat and a counsel for two unions – drew GOP flak and won panel approval by a 15-8 vote, with eight Republicans voting “no.”  The committee’s top Republican, Mike Enzi of Wyoming, said he had “some questions about Becker’s previous writings,” without being specific.

The nominees now go before the full Senate for approval.

Committee Chairman Tom Harkin, D-Iowa, praised all three nominees and also spoke about how the board – when run by a Bush-named GOP majority – veered away from its mission of enforcing labor law’s workers’ rights provisions. 

Harkin also rebutted the GOP arguments against Becker, saying Becker “pushed the envelope” in analyzing labor law in scholarly articles while in private practice, but promised he would impartially follow the law as written when he joins the NLRB.

“The NLRB is a small agency, but its mission is a large one – to 'encourage the practice and procedure of collective bargaining and…protect the exercise by workers of full freedom of association,’” Harkin, son of an Iowa coal miner, explained.

“In today’s challenging economy, when workers are vulnerable and worried about the future, it is critically important to have strong leadership at the board to guide the agency in its core mission. 

"Unfortunately, in recent years the Board seems to have strayed off course.  The agency doesn’t seem to be doing all it can to inform workers of their rights, or to appropriately punish repeat violators of our labor laws.

“I am also concerned about the excessive delays – justice delayed is justice denied, and all too often these delays mean there is no real penalty for violating workers’ rights.   It will be a serious challenge to restore the core mission of this agency, but I think today’s nominees are up to the task,” Harkin concluded.

Approval of Becker, Pearce and Hayes by the full Senate, which has not been scheduled yet, is important, because a federal court ruling earlier this year threw the board’s powers into legal limbo.   That’s because since late Dec. 2007, the NLRB had only two members out of its authorized five, Democrat Wilma Liebman and Republican Peter Schaumber.  Obama has designated Liebman to chair the board.

Those two, relying on a legal interpretation from the Bush administration, have decided almost 400 cases – most of them deemed relatively noncontroversial – by 2-0 votes, with a third “phantom” member, who would always presumably vote “no,” providing a quorum – thus letting the board issue final rulings.  Many federal appeals courts agreed with that interpretation.

But the top federal appellate court in D.C. threw it out earlier this year.  The court said the board needed a real quorum, of three people, to decide anything.  It also ruled the 2-0 cases might have to be decided all over again. The D.C. court handles most of the NLRB’s cases.  Liebman and Schaumber asked the Obama administration to appeal that “real quorum” decision to the U.S. Supreme Court, which it did.

That hasn’t stopped Liebman and Schaumber from issuing more 2-0 rulings.  But Liebman said, when they announced they were taking the case to the High Court, that her board’s two members still look forward to getting a full board.