Hunton Employment & Labor Law Perspectives : Employment Lawyers & Attorneys : Hunton & Williams Law Firm : Labor Law Legislative Updates

It takes only a moment's reflection to understand that the use of electronic voting is virtually identical to the card check proposal that the American public and many in Congress would not support during the debate over the so-called Employee Free Choice Act (EFCA).  What is the difference?  The opportunity for coercion, threats and other misconduct interfering with employee free choice is apparent in both "voting" methods.  The only variation is that instead of the union representative having to lug the cards all the way down to the NLRB's office, the union representative can push the electronic voting button for the employee.  The fact that EFCA is virtually dead lends credence to the view that this is nothing more than an end run around the legislative process that defeated EFCA.
 
Employers and other groups that spent so much time and effort exposing EFCA as a thinly veiled mechanism to deny American workers the freedom of choice had better not sit on the sidelines for this either.  Otherwise, they will find that the most heinous part of EFCA was slipped in right under their noses.

Currently, the NLRB has four sitting members.  This number will reduce to three when Republican Member Schaumber's term runs out in August, 2010.   All three remaining Board members are Democratic appointees. Typically, a fully constituted Board decides 300 to 400 cases per year and there was already a backlog of several hundred cases to be decided prior to the re-arrival of the 600 cases affected by the Supreme Court's decision.  Thus, the log jam of cases at the Board may continue as the Members wrestle with re-deciding the remanded cases.  It is unlikely that the current Board will overturn those decisions which favored unions or employees and there may be occasion for the new Board to change the law or Board's policy in the reconsideration of some of the cases.

We previously predicted that the new Board will overturn a significant number of decisions rendered in favor of employers during the preceding administration.  The agenda to consider those cases will be directed by the NLRB's General Counsel who has the authority to prioritize the cases coming before the Board.  With the departure of General Counsel Ron Meisburg, the President now has the opportunity to appoint his replacement.  However, even with the appointment of a new general counsel, the remand of these 600 cases may affect the Board's timetable in working through the predicted pro-labor agenda.

DOL’s Office of Labor-Management Standards (“OLMS”) held a public meeting on May 24th in Washington, D.C. regarding DOL’s new proposal.  The purpose of the meeting was to receive comments on the planned rulemaking, and the meeting was considered a “listening session” for DOL.  Following a brief introduction to the issues, the floor was opened to those wishing to provide related comments, which became part of the record for the planned rulemaking.

A number of labor-affiliated attendees at the meeting, including the AFL-CIO and the Mine Workers of America, and spoke in favor of the new regulatory initiative.  On the other side of the aisle, attendees from the business community, such as the U.S. Chamber of Commerce and the National Association of Manufacturers, opined that narrowing section 203(c)’s advice exception would adversely impact attorney-client communications and would hinder the free speech rights of employers.

Speaking on behalf of the U.S. Chamber of Commerce, Michael Eastman, Executive Director of Labor Law Policy, expressed concern that narrowing the advice exception will make it more difficult for employers to obtain legal advice regarding labor relations and the National Labor Relations Act (“NLRA”).  Eastman also stated that the LMRDA is designed to provide disclosure when employers engage third parties to interact with and persuade employees, “because employees may not otherwise know such individuals are agents of the employer,” but that “this is not true in the case of the employer’s supervisors, managers, and officers.” 

The rulemaking process takes some time, and we will let you know as soon as DOL publishes a formal Notice of Proposed Rulemaking, at which time comments on the proposed rule can and should be submitted.

Background

Executive Order 13496 was signed by President Obama on January 30, 2009.  It revokes Executive Order 13201, which required posting of the “Beck Poster” (the Beck Poster advised employees they could not be compelled to join a union or maintain a union membership to keep their jobs, and could restrict the use of their union dues for certain purposes).  The goal of the Order is to ensure federal contracts will not be interrupted by labor unrest.  It is premised on the idea that industrial peace is best achieved by informing workers of their rights under Federal labor law.

After almost a year and a half of rulemaking, the form of the new notice has been finalized.  Hard copies can be obtained from the DOL’s Office of Labor-Management Standards (OLMS) at (202) 693-0123 or by email request at olms-public@dol.gov. 

What The Notice Does 

The new notice informs employees of their rights to organize, join a union, bargain collectively, and engage in other protected concerted activity under the NLRA.  It also gives examples of illegal conduct by employers and unions, and gives contact information for National Labor Relations Board.

Is Your Company Affected?

Companies should carefully scrutinize any federal contracts or subcontracts that are signed or modified after June 21, 2010.  The new posting obligation is triggered by the government agency or department’s inclusion of a notice clause in the government contract.  The  clause may not be included in full, however, so also look for inclusion by reference to “29 CFR Part 471, Appendix A to Subpart A.” 

Exceptions to the posting requirement include federal contracts under $100,000, subcontracts below $10,000, and contracts/subcontracts for work to be performed exclusively outside the territorial U.S.  Also, employers who exclusively employ workers excluded from coverage under the NLRA are not covered.

What Should You Do To Comply?

If the notice clause is present in your contract, the company must conspicuously post the prescribed notice wherever employees covered by the NLRA are engaged in activities related to performance of the contract.  The notice must be posted in all places where notices to employees are customarily posted, both electronically and physically.  Physical postings must be on 11x17 size paper.  For electronic postings, the employer must provide an electronic link to the actual notice.  If a large portion of the company’s workforce is not proficient in English, a translated notice must be provided.  Translations can be obtained from the OLMS.  
 
In addition, the contractor must include provisions requiring posting of the same notice in all subcontracts entered into in connection with the contract.

Penalties and Enforcement

The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) will conduct evaluations to determine compliance with the new requirement.  It is thus particularly important for any company undergoing audit by the OFCCP to ensure the new notice is posted by June 21, 2010.  The OFCCP has issued a Powerpoint Presentation of guidance to federal contractors.  Employees also may file complaints about noncompliance.

Failure to comply with the notice and posting obligation can result in cancellation, termination or suspension of the government contract, in whole or in part.  The contractor may also be declared ineligible for further government contracts.  In addition, the Secretary of Labor may publish the names of any contractors that have failed to comply. 

Currently, there are two NLRB members sitting by virtue of Senate confirmation, including Member Schaumber, a Republican appointee whose term expires in August.  Members Pearce and Becker are recess appointees appointed by the President in March, 2010.  A procedural maneuver by Senator Harkin to slip Member Becker, the most controversial of the Obama appointees, into a full term was blocked on the Senate floor late last week.  Republican Brian Hayes, who had been nominated by the administration for a full term, failed to receive a recess appointment from the President when he gave such appointments to Democrats Pearce and Becker.  Thus, without additional Board appointments or confirmations, there will be three sitting Democrats and no Republicans on the five-member NLRB by September 1, as well as a new General Counsel appointed by the White House.  Meisburg's resignation is also likely to fuel speculation that some sort of deal can be worked out between Democrats and Republicans to re-staff the full Board and the General Counsel's office at the same time. From the employer's perspective, such an agreement is hoped for but difficult to envision.

The employer community is expecting a shift in Board policy, rules and decisions toward the interests of labor. The fact that at or about the time of the recess appointments the Board hired an outside expert in the field of "rulemaking" has lead to enormous speculation that the NLRB intends to actively change its rules going forward. Many have also recognized that the Board does not have to undertake a formal process to change many of its current rules relating to elections.
 
The General Counsel can heavily influence the agenda and timing of cases that come before the full Board. There are a host of cases that can be lined up for decision, many of which can serve to overturn Bush era precedents unpopular with organized labor. One can expect the Board to revisit issues relating to the definitions of supervisors and independent contractors; whether employees have the right to call for an election after voluntary card check recognition; whether temporary employees can be organized; the use of email; whether non-union employees have Weingarten rights; pre-recognition bargaining; bannering; cessation of dues checkoff after contract expiration; whether "salts" must have a genuine interest in the job, and many more issues.

Even without the Employee Free Choice Act, the passage of which now appears unlikely, these developments should create greater opportunities for labor and a more challenging environment for business.

The Department’s current policy is to construe the “advice exception” broadly to exclude arrangements where the consultant has no direct contact with employees.  This excludes, for instance, situations where the consultant coordinates a campaign to defeat a union organizing effort, so long as the consultant does not contact employees directly.

The Department now views this policy as overly broad.  It intends to publish notice and comment rulemaking to consider a narrower interpretation of the “advice exception” that more closely implements the Department’s new interpretation of the intent of the LMRDA.  The Department’s goal is twofold:  to provide greater labor-management transparency for the public, and more information to workers to ensure effective participation in the workforce. 
 
The Department has announced a Notice of Public Meeting where interested persons can provide comments, to be held May 24, 2010 in Washington, D.C.    Interested participants can register by calling 202-693-0123 or sending an email to olms-public@dol.gov.  At the same time, the Department will seek comments on whether electronic filing should be mandatory for the Form LM-10 and LM-20 reports.

The rulemaking process takes some time, so new regulations are not likely to be finalized for several months.  However, if the Department narrows the “advice exception” as planned, the impact on employers could be significant.  Employers will no longer be able to shield third-party arrangements from reporting simply by isolating consultants from direct employee contact.  A wider range of consulting arrangements will be open to public scrutiny.  Rather than face increased public reporting, employers may elect to perform in-house more of the activities designed to persuade employees as to their bargaining rights.  Employers will have to weigh the benefit of experienced third-party assistance against the cost of public disclosure.

The final rule was issued by the NMB after several months of discussion.  It will take effect 30 days from its publication in the Federal Register on May 11 and its impact will likely be felt immediately in the airline industry.  The Association of Flight Attendants (“AFA”) has already indicated that it will file for an election at Delta Air Lines once the rule becomes effective.  Unions had previously failed to obtain a majority vote at Delta, but Delta’s composition of union and non-union workers has shifted since 2008 when it merged with a heavily unionized NorthWest Airlines.  The Air Transport Association (“ATA”), which represents most airlines, has also responded to the new rule arguing that the NMB does not have authority to implement the rule.  The ATA is expected to file a lawsuit challenging the validity of rule. 

Although the NMB’s action is specific to the airline and railroad industries, it is notable because it continues the trend of recent pro labor actions.  The rule was proposed by the AFL-CIO after President Obama named Linda Puchala to the NMB.  Puchala was the former head of a flight attendant union and as with the recent appointments to the National Labor Relations Board, her appointment shifted the balance of the NMB in a pro labor direction.  The rule was approved by a 2-1 vote with a dissent by Elizabeth Dougherty who explained that the new rule is “an unprecedented departure for the NMB and represents the most dramatic policy shift in the history of the agency.”

Henry’s pledge to heal internal union rifts and to settle disputes with other labor unions, such as UNITE HERE, caused in part by Stern’s penchant for organizing workers in industries traditionally organized by other labor unions, suggests that she may indeed want to change the dynamics at SEIU.  However, Henry simultaneously has announced that she intends to redouble SEIU’s organizing efforts and unveiled a new multi-million dollar “innovation fund” to facilitate private-sector organizing.  According to Henry, this new fund, which will supplement the hundreds of millions of dollars SEIU already spends annually on organizing campaigns, will be used to organize industries that have not traditionally had employee representation, such as banks and biotechnology companies.  We have opined several times in this space that the financial services industry is particularly vulnerable to union organizing and noted that Stern’s SEIU was spearheading the effort to make inroads with the rank-and-file banking employees.  Henry’s new “innovation fund” suggests that she has no intention of altering Stern’s vision of an organized financial services sector. 

Henry also claims that SEIU will continue to be politically active and will seek to hold “bad actors” in government accountable in the upcoming November elections.  Henry singled out Arizona Governor Jan Brewer for her part in that state’s recent passage of immigration legislation that was bitterly opposed by big labor, including SEIU.  Henry also plans to support Arkansas’ Lieutenant Governor, Bill Halter, in a primary challenge to Senator Blanche Lincoln, who opposed certain aspects of the President’s health care reform package that were favored by unions.  Henry also said that SEIU will focus on governors’ races in Connecticut, Florida and Ohio.  Henry’s political agenda does not sound all that different from what Stern’s agenda likely would have been had he continued at SEIU’s helm.
 
Speculation about Henry’s intentions is all the more fascinating in light of the intense debate about the legacy Andy Stern will leave behind: is he leaving the SEIU at a time when it needs him most, or is he actually leaving just in time?  To many, Stern has been at the peak of his game, as evidenced by SEIU’s recent $1.5 million jury verdict against California breakaway union − and bitter rival − National Union of Healthcare Workers, President Obama’s recess appointment to the National Labor Relations Board of SEIU-attorney Craig Becker, and Congress’ passage of landmark healthcare reform using the strategy articulated by Stern himself after the special election of Massachusetts Senator Brown threatened the survival of President Obama’s highest legislative priority.  To others, Stern’s departure could not have come any sooner for SEIU.  His perceived over-emphasis on politics, apparent loss of interest in traditional union organizing, and attempts to raid the ranks of other major unions polarized his presidency and to some degree isolated SEIU from the rest of the labor world.  In addition, and despite emptying SEIU’s coffers to help elect President Obama, Stern failed to deliver on EFCA and could not get Becker through the Senate confirmation process.  Some have even speculated that Stern may be implicated in former Illinois Governor Rod Blagojevich’s criminal corruption trial, and that his departure was timed to avoid unnecessary collateral damage to SEIU.

Whatever Stern’s reasons for leaving, or whether his resignation is a positive or negative development for SEIU, employers and labor leaders alike will be keeping a keen eye on Henry and the path she chooses for her union.  If her first few days at the helm are any indication, employers should not expect to see wholesale changes from SEIU any time soon.  Practically speaking, this likely means that SEIU will continue to be politically active, backing candidates who support its legislative and social agenda, and will continue to aggressively organize new employees using both traditional means and pressure tactics such as corporate pressure campaigns.  The tale of Henry’s leadership will not be told in the coming weeks, but over the next several years.  Like most in the world of labor, we will be watching closely.

So why is Craig Becker such a controversial figure?  Much of the controversy stems from a 1993 Minnesota Law Review article Becker wrote, entitled “Democracy in the Workplace: Union Representation Elections and Federal Labor Law,” while Becker was a UCLA law professor.  In his article, Becker argued that current standards governing union elections should be scrapped in order to severely limit the role of employers in the union representation election process.

Under existing Board standards, employers are afforded certain “free speech” and procedural rights in the union election process.  For instance, an employer may insist upon a secret ballot election.  An employer may participate as a party in pre-election and post-election hearings to determine such issues as who is entitled to vote, the size of the bargaining unit, and when and where the election will be held.  During an election campaign, an employer has the right to speak freely about unionism in general, and about the union in particular, even in strong negative terms, as long as the speech does not include any threat of reprisal or promise of benefit.  Following an election, an employer may challenge the election result before the Board and the courts.

None of this sits well with Becker.  According to his law review article, Becker would like to see strict limitations placed on each of these employer rights, essentially removing employer participation and free speech from the union election process.

In justifying his proposed reforms, Becker distinguishes union elections from political elections, and employers from political candidates, based on what he sees as an economic inequality between employers and workers.  According to Becker, completely removing employer influence in union elections is critical to restoring what he calls “industrial democracy” in the workplace.

Some caution that Becker’s article was published nearly two decades ago as a young law professor, and his view may have tempered over time.  Nonetheless, employers should take heed from his views.  Becker was appointed to the Board on March 27, 2010, and will remain in his position at least through 2011.  The Board now consists of three pro-labor members and just one pro-business member.  With majority control of the Board, Becker and his pro-labor colleagues can easily reshape the existing election standards with little effort.

When he appeared for his confirmation before the Senate, Becker tried to calm critics by stating that his views as an academic would not be the same as his views as a member of the Board.  Skeptics, however, fear that Becker’s law review article, as well as his extensive experience vigorously representing organized labor, suggests a more realistic assessment that “what you see is what you get” with Becker.  Accordingly, employers should be aware that democracy in the workplace may well be on the way − “union style.”

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Under Register Guard, employers may prohibit employees from sending non-job related solicitations using the employer’s email system, including union-related communications.  Register Guard established that employers may prohibit this type of email even if the employer permits employees to send personal messages via email, such as an announcement of someone’s birthday, as long as the employer did not discriminate between union and nonunion communications of a similar nature.   

In Oakwood, the Board broadly defined a “supervisor” under the National Labor Relations Act (“NLRA”) as a person who assigns work to other employees using independent judgment and discretion.  Supervisors are not protected under the NLRA and can be ordered to assist the employer in its anti-union activities or discharged for assisting a union.  The Board stated that an individual’s judgment is independent where it is not dictated or controlled by instructions, such as employer policies or rules. 

Should the Board revisit the holding of either case, the result will most likely be employee- and union-friendly. 

In her Register Guard dissent, Board Member Liebman (now Chairman) would have found that “banning all nonwork-related ‘solicitations’ is presumptively unlawful absent special circumstances.”  When considering Register Guard on remand from the D.C. Circuit, the Board may now follow Liebman’s lead.  It will likely hold that the employer cannot preclude employees from using the email system for union-related matters. 

• What can employers do?  Employers should try to prohibit union-related solicitations by strictly prohibiting any personal use of their email systems.  Circuit courts may uphold such a policy even if Register Guard is reversed along Liebman’s interpretive lines.

In the Oakwood dissent, Liebman wrote that an individual should not be classified as a supervisor if the only supervisory duty performed is simply designating a task or tasks. If Oakwood is revisited, the Board will likely interpret “supervisor” less broadly.  This would make it more difficult for employers to classify lead persons who assign duties on a daily basis as supervisors.  Thus, in a union organizing drive, lead persons would be part of the bargaining unit and could advocate unionization to the workers they oversee. 

• What can employers do?  To ensure that lead persons can be classified as supervisors, employers should make sure that they do more than merely assign tasks (e.g. evaluate employees for raises, hire subordinates, make effective recommendations for hire, or authorize time off or overtime).

Becker Appointed To NLRB

The President filled two of the three vacant seats on the NLRB with Democratic nominees Craig Becker and Mark Pearce.  The President cited the need to promote "the basic functioning of government" as the reason for issuing the appointments.  However, he chose not to appoint Republican Brian Hayes, whose uncontroversial nomination has been pending along with those of Becker and Pearce, to fill the remaining vacancy.  As a result, the NLRB is still not fully constituted.
 
By statute the NLRB is to have five members.  Traditionally, three of the members come from the sitting president's political party and the other two are from the other party.  However, the Board has been functioning for more than two years with only two members--its Chairperson Wilma Liebman (Democrat) and member Peter Schaumber (Republican).  The two have decided more than 500 cases.  The authority of the NLRB to decide cases with only two members was the subject of an argument before the U.S. Supreme Court just last week.  All parties to the case agreed that the Board had the statutory authority to act if it had three or more sitting members.

Before leaving Washington for a two-week, post-healthcare debate recess, 41 Senators, all Republicans, wrote the President requesting that he not issue a recess appointment to Mr. Becker.  Twenty business groups, including the U.S. Chamber of Commerce, echoed the sentiments of the Senate Republicans.

Becker's nomination has been hotly contested since it was announced last fall, as a result of what some call his "extreme" views about the union selection process.  Because of that controversy, just before the Christmas 2009 recess, Senator McCain exercised his Senatorial privilege to put Becker's nomination on hold, although Republicans and Democrats indicated that the nominations of both Pearce and Hayes would be approved without significant debate.  However, the President did not seek a vote on Pearce or Hayes at that time.

Mr. Becker will leave his post as counsel for the Service Employees International Union (“SEIU”) to take his seat on the NLRB; he will remain a Board member until his recess appointment runs out at the end of 2011. With a 3-to-1 pro-labor majority and with no particular timetable for action on Mr. Hayes' nomination, the NLRB is poised to reverse numerous decisions made by the Bush appointed Board on a number of controversial issues.

As we have written in this column on several occasions, Mr. Becker's views are of grave concern to many in the business community.  For example, Mr. Becker opposes participation by employers in the process by which employees decide whether to choose union representation.  Becker does not believe that employers should be allowed to express an opinion, provide any relevant information to their employees, or otherwise participate in the process in any way.

It is difficult to tell whether Becker's appointment signals the President's intent to defer action on the so-called Employee Free Choice Act (“EFCA”).  Some will speculate that the appointment indicates a compromise between the President and Andy Stern, who runs the SEIU and has visited the White House more than anyone else in the last year.  Stern is a staunch supporter of both EFCA and his employee, Mr. Becker.  The President and Secretary of Labor Hilda Solis have repeated their support for passage of EFCA.  However, the proposed law, which would eliminate the right of employees to vote on the question of union representation, has been mired in controversy since the President took office.  Like health care reform legislation, it may require the President to muster all forces at his command to get it passed.

Becker has made clear his view that the NLRB can engage in both rule making and rule changing, which could accomplish much of what EFCA is designed to do without Congressional action.  By failing to appoint Hayes, the NLRB now has a decidedly pro-labor majority which could enact sufficient changes to the union selection process to allow the President to avoid the firestorm which would accompany the debate over EFCA. 

Feldblum Appointed To EEOC

The President also announced that he would use recess appointments to fill slots on the EEOC with controversial Georgetown University law professor Chai Feldblum, Jacqueline A. Berrien, Victoria A. Lipnic, and David Lopez. 

The appointment of Feldblum drew immediate criticism from conservative Republicans.  Feldblum, who will be the first openly gay member of the EEOC, is best known for her support of the rights movement for lesbian, gay, bisexual, and transgender (“LGBT”) persons.  She helped craft the Employment Non-Discrimination Act (“ENDA”), which would prohibit discrimination against employees on the basis of sexual orientation or gender identity by civilian non-religious employers with 15 or more employees. 

The EEOC nominees were approved by a Senate committee in early December, but their confirmation vote was put on indefinite hold by Senate Republicans who viewed Feldblum and other Obama nominees as too extreme.  Supporters of the President’s move to exercise the recess appointment option cite the EEOC’s backlog of discrimination claims and the current absence of a quorum needed to effectively address claims.  In a statement issued with the recess appointments, President Obama said, “The United States Senate has the responsibility to approve or disapprove of my nominees.  But if, in the interest of scoring political points, Republicans in the Senate refuse to exercise that responsibility, I must act in the interest of the American people and exercise my authority to fill these positions on an interim basis.”

Recess appointments last until the end of the next session of Congress.  The White House announced, however, that the nominees will remain in the Senate for confirmation by regular procedures. 

AFL-CIO boss Richard Trumka claims that the campaign will send a message to the banks:  “Stop refusing to pay your fair share to restore the jobs you destroyed, stop fighting financial reform and start lending to your communities, small businesses and others starved for credit.”   Demonstrations kicked off last week and may reach 200 locations.  Flyers will urge observers to "Tell the banks to PAY UP!"

The campaign is not limited to painting financial institutions in a negative light.  Through the participation of advocacy group Americans for Financial Reform (AFR), the campaign will push Congress to pass a set of "financial speculation taxes" which would place a tax on certain securities transactions.  The campaign speculates that this tax would raise over $100 billion per year.

The AFL-CIO claims that its partnership with AFR is not about labor organizing but instead is about “holding banks accountable” and pushing for financial reform.  However, a look below the surface reveals AFR’s extensive ties to organized labor and other anti-business groups.  Stephen Abrecht, the current director of the Service Employees International Union's (SEIU) pension funds, is a member of AFR's Executive Committee.  AFR's Steering Committee includes representatives from MoveOn, AFL-CIO, and USAction--a group that was instrumental in the formation of Health Care for America Now (HCAN).

HCAN was a central participant along with SEIU in a major demonstration recently against the insurance industry in Washington.  HCAN and SEIU also were heavily involved in the effort to disrupt citizen protests at Congressional town hall meetings last summer.  (HCAN circulated instructions on how to confront and disrupt those who tried to speak out at town hall meetings.  The group’s memo was circulated just two days before Missouri Democrat Russ Carnahan's town hall meeting, during which protestor Kenneth Gladney was assaulted by SEIU members.)  In addition, Khalid Pitts, one of USAction's board members, is SEIU's director for political accountability.  Tax records reveal that SEIU has contributed hundreds of thousands of dollars to USAction in recent years.

We observed in this space several months ago that the current economic climate provided organized labor with ideal cover to begin organizing America's largest banks, a view shared by others who are monitoring the unions' progress.  Whether the AFL-CIO's campaign is an indication that big labor is taking this effort to the next level, or simply trying to portray itself as a relevant player in the national debate around issues like “corporate accountability,” remains to be seen.  But the participation and assistance of grassroots NGO's and other anti-corporate organizations suggests that campaign events may become more aggressive in nature.  By escalating hostilities and more aggressively lobbying for financial reforms adverse to the business interests of private financial institutions, unions may be hoping to increase outside pressures on the banks and render them less resistant to  attempts to organize their employees. 

In this regard, SEIU announced plans to pressure the Maryland state legislature to move the state’s money out of “big Wall Street banks.”  The union has already had some success with this pressure strategy, as it claimed credit for convincing the Los Angeles City Council to adopt a similar resolution last month.  
 
Whether the AFL-CIO is acting in league with SEIU, or competing against it -- both for national attention and for new union members -- most financial services institutions should be aware by now that they are directly in the crosshairs of several major union corporate campaigns.  We recommended in December that the banking industry prepare for these attacks by addressing workplace concerns and potentially controversial business practices, and by preparing a strategic public relations response.  The AFL-CIO's new push suggests that time may be running out to take these steps effectively.

An employer that waits until a union organizing campaign has commenced to make major workplace changes risks violating federal labor laws.  Likewise, waiting until a corporate campaign has fully materialized before taking strategic action could place the employer in a disadvantageous, reactionary posture.  As union attacks on the financial services industry build toward a crescendo, banks that have not formed a comprehensive strategy for addressing these new challenges should wait no longer.

Becker could still be appointed to the NLRB if the President makes a recess appointment. Currently, the Board has only two of its five seats filled, and requires a third to meet the quorum requirement.  However, given the controversy surrounding the Becker nomination, it would be a bold move for the President to fill the quorum by giving Becker the seat.  Two other current nominees, Mark Gaston Pearce (D.) and Brian Hayes (R.) are less controversial than Becker and their nominations are also before the Senate for consideration. The controversy surrounding the Becker nomination is due principally to Becker’s background, which many believe displays an anti-free-market and pro-union bent.  Becker is a labor lawyer who has served as associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO.  For the past 27 years, Becker has taught and practiced labor law and written articles expressing extremely pro-union, anti-business views.

It appears that the Senate can confirm both Pearce and Hayes at any time. However, should  the Senate attempt  to confirm Pearce (the Democrat) without Hayes (the Republican), it is predicted that Senate Republicans will object or resist.
  
As for a recess appointment, it is unclear whether there will be a recess next week, given the blizzards this week that have resulted in snow days in Washington, D.C.  If the Senate takes off three (3) days or more next week, as originally planned, the President will have the opportunity to use his recess appointment power.  If so, the President could appoint Becker, Pearce, or Hayes, or any combination, including all three nominees to the NLRB.  If any of them receives the recess appointment, the appointment must be approved by the Senate by the end of the next session (which in current practice would likely be some time in December of 2011, although it is not certain), or the position becomes vacant again.
 
It is not clear why Senate Majority Leader Reid pushed the cloture vote when he knew last week that it would fail after Senators Enzi (R. Wyo.) and Murkowski (R. Alaska) of the Senate Health, Education, Labor, and Pensions Committee changed their votes to oppose Becker’s nomination. However, after the cloture vote, labor organizations are now more informed about who it should support, with Senators Lincoln and Nelson likely no longer on its list of supportive candidates.

Although the Committee approved his nomination again, it did so with a 13-10 party line vote. The confirmation vote could take place as early as next week.

Anticipating another hold would be placed on Becker’s nomination,  proponents were pushing hard for a cloture vote before Massachusetts Senator-elect Scott Brown took his seat. However, Brown was sworn in by Vice President Biden shortly after 5 p.m. ET yesterday, ending the Democrats' supermajority and becoming the Republican's "41st vote" on health care.  Late yesterday, a cloture vote petition with seventeen (17) signatures was filed on Becker, and the vote will take place Monday evening. With Brown seated, Becker’s proponents are unlikely to obtain the 60 votes need to override any hold placed on the nomination.

The controversy surrounding the nomination is due principally to Becker’s background, which many believe displays an anti-free-market and pro-union bent. Becker is a labor lawyer who has served as associate general counsel to the Service Employees International Union (SEIU) and the AFL-CIO.  For the past 27 years, Becker has taught and practiced labor law and written articles expressing extremely pro-union, anti-business views.

The Senate HELP Committee received a letter from 23 major trade organizations last week expressing concern that the NLRB would be able to “radically interpret existing labor law should Becker be confirmed.” The Committee received a separate letter from 600 manufacturing employers urging members to oppose the confirmation.

Senator Johnny Isakson (R., Ga.) expressed concern that Becker's writings "have indicated a belief that the NLRB has the power to make some of the dramatic changes in the card-check bill." This legislation would permit unions to bypass secret-ballot elections and instead organize in workplaces by collecting signed cards from workers.

In an attempt to distance himself from his writings, during Tuesday’s hearing, Becker suggested that he doesn't believe the Board could take such a step. "The law is clear that the decision...(of) an alternative route to certification rests with Congress and not the board," Becker said, adding that his writings were "intended to be provocative and to ask fundamental questions in order for scholars and others to re-evaluate."

In a Huffington Post article posted Thursday, February 4, Stewart Acuff, Chief of Staff and Assistant to the President of the Utility Workers Union of America, illustrates these concerns as he states:

The Employee Free Choice Act has the support of a majority of the US Senate. But under the current rules in the Senate you need not a majority -- 50 votes-- but a super-majority of 60 votes to move legislation to where a vote to pass it can even take place. We are very close to the 60 votes we need. If we aren't able to pass the Employee Free Choice Act, we will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action… 

(emphasis added). 

At Tuesday’s hearing, Senator McCain grilled Becker over whether he would recuse himself from cases before the NLRB involving the SEIU, where Becker most recently worked. Becker said he would recuse himself from cases involving the SEIU for two years; however, he would not commit to doing so in a case mentioned by McCain involving a local chapter of the union.