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Legal Updates

Recess Appointees To NLRB And EEOC Take Office

The individuals recently named by President Obama to the National Labor Relations Board (“NLRB”) and Equal Employment Opportunity Commission (“EEOC”) via recess appointment have now been sworn into office.  The NLRB appointees are Craig Becker (D) and Mark Pearce (D), and the EEOC appointees are Jacqueline A. Berrien (D), Chai R. Feldblum (D), Victoria Lipnic (R), and P. David Lopez.  The recess appointments will last until the end of the 2011 congressional session.  They signal an initiative to place Democratic leadership in key labor and employment agencies and to step up agency enforcement.

Constitutional Authority

Generally, after the president nominates individuals to fill high-level policy-making positions in federal departments, agencies, boards, and commissions, the Senate must confirm the nominations before the president can appoint them to office.  The U.S. Constitution provides an exception to this process for appointments made when the Senate is in recess.  During a recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval.  Recess appointments are fairly common.  President Clinton made 139 recess appointments, and President George W. Bush made 171.

NLRB Appointments

The NLRB normally has five members and decides cases with three-member panels.  Historically, the NLRB has consisted of two Democrats, two Republicans, and a fifth member from the president’s party.  However, since 2008, the NLRB has operated with only two members – Chair Wilma B. Liebman (D) and Peter C. Schaumber (R).

Approximately 80 of the almost 600 rulings issued by Liebman and Schaumber have been challenged as invalid on the theory that the NLRB lacks authority to issue rulings without a quorum of at least three members.  This issue is pending before the U.S. Supreme Court.

President Obama nominated Becker, Pearce, and Brian E. Hayes (R) last July to fill the three vacancies, but a bipartisan agreement to treat the nominees as a package fell apart amid strong opposition to Becker.  This stalled all three nominations.

Mr. Becker was associate general counsel to the Service Employees International Union (“SEIU”) and, before that, staff counsel to the American Federation of Labor and Congress of Industrial Organizations (“AFL-CIO”).  This has prompted the National Right to Work Legal Defense Foundation to file motions with the NLRB seeking Becker’s recusal from pending cases involving the SEIU.  The less controversial Pearce, also a Democrat, represented unions and employees in labor and discrimination cases.

Much of the uproar regarding Becker concerns his allegedly radical theories of labor law.  For example, Becker has written that employers should be barred from challenging union election results—even amid evidence of union misconduct.  Opining that traditional notions of democracy should not apply in union elections, Becker has argued that “captive audience speeches” made by employers to advocate against unionization should be grounds for overturning any election in which the union lost.  Becker also is believed to support “card check,” i.e., replacing secret-ballot elections with automatic recognition of a union based on its collection of authorization cards from employees, one of the central features of the controversial Employee Free Choice Act that has stalled in Congress.

Republicans and business groups have criticized the recess appointments.  Sen. John McCain (R-Ariz) said he was “very disappointed” by the recess appointments and called Becker’s appointment “clear payback by the Administration to organized labor.”  The U.S. Chamber of Commerce’s Vice President, Randel K. Johnson, said the business community “should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.”  The fact that the only Republican nominee, Hayes, was not appointed was another point of criticism.

On the other side of the aisle, Democrats and labor unions have applauded President Obama’s actions.  Sen. Tom Harkin (D-Iowa) commented that President Obama “took an important step on behalf of American workers” by breaking the “stronghold of obstructionism that has held nominations up for months in the Senate.”

The recess appointments create a Democratic majority on the NLRB for the first time since 2001.  When Schaumber’s term expires on August 27, 2010, the NLRB will consist of three Democrats.  Although some warn that the majority will result in sweeping pro-labor reforms, NLRB Chairman Liebman has publicly stated that suggestions of “radical” change are unfounded.  Only time will tell.

EEOC Appointments

The EEOC recess appointments sparked relatively little controversy.  Berrien was sworn in April 7 as the agency’s 14th chair and is the former associate director-counsel of the NAACP Legal Defense and Educational Fund Inc.  Feldblum was sworn in April 7 as a commissioner and is a former Georgetown University law professor.  Lipnic was sworn in April 10 as a commissioner and served as assistant secretary of labor under President George W. Bush.  Finally, Lopez, who has been with the EEOC for thirteen years, will serve as general counsel.

This will be the first time since August 2008 that the EEOC has operated with a full complement of five commissioners.  Since December 2009, the EEOC has operated with only two members – Acting Chairman Stuart Ishimaru (D) and Commissioner Constance Barker (R).  At full capacity, the EEOC will likely increase its enforcement efforts, streamline case processing, and address areas requiring regulatory action (e.g., pending EEOC regulatory initiatives involving the ADA Amendments Act and the Genetic Information Nondiscrimination Act).

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Please do not hesitate to contact us if you have any questions about the recess appointments or their potential impact on your business.