Friday, April 2, 2010

President makes recess appointments to NLRB, EEOC

Buoyed by his health care reform victory and citing “months of Republican obstruction to administration nominees,” President Obama made 15 recess appointments on Saturday, filling two vacancies on the NLRB, including controversial union lawyer Craig Becker, and appointing four nominees to the EEOC. “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,” Obama said.

Craig Becker, the most contentious nominee, has served as associate general counsel to both the SEIU and the AFL-CIO; his appointment has faced intense Republican and business opposition. Becker earned his JD from Yale Law School and has practiced and taught labor law for the past 27 years, with stints at UCLA, University of Chicago, and Georgetown. His numerous articles in scholarly journals have provoked much consternation. The US Chamber of Commerce, other business groups, and Republican senators claim Becker’s writings suggest a radical interpretation of labor law—in particular, a belief that employers should play no role in employees’ decisions over whether to join a union. They claim Becker’s rulings as a Board member will essentially result in de facto enactment of the Employee Free Choice Act.

All 41 Republican senators signed on to a letter warning Obama not to appoint Becker, noting “the Administration would be wise to not circumvent the will of the Senate by recess appointing him to the NLRB.” (Democrats responded in kind with a letter urging the President to act.) The Senate had rejected Becker in December, sending the nomination back to Obama for reconsideration. Obama sent the nomination to the Senate once again in January. The Senate HELP Committee approved Becker’s nomination on February 4, voting along party lines to send the nomination to the full Senate following a rare hearing on the nominee earlier in the week held at the behest of business groups and Republicans. A February vote to end debate on Becker’s nomination failed 52-43.

Not surprisingly, reaction from both sides was emphatic. The Republican National Committee decried the move in stark terms: “Recess Appointment of Becker Payback from Obama to His Union Paymasters.” US Chamber of Commerce senior vice president Randel K. Johnson called Becker’s appointment a “special interest payback” and warned, “[t]he business community should be on red alert for radical changes that could significantly impair the ability of America’s job creators to compete.” (Johnson noted Becker’s nomination was the first time since 1993 that the Chamber has opposed a Board nominee.) Meanwhile, Kimberly Freeman Brown, executive director of American Rights at Work, released a statement on March 27 applauding the appointments. “America's workers need a fully functioning NLRB to mediate their claims for better wages, benefits and other rights now more than ever—and after two long years they have one. While there is much more that the Obama Administration can do to advance the cause of labor law reform, today's appointments were a very good start.” Labor federation Change to Win also noted its support. “Change to Win joins with all of labor and responsible business and policy leaders in agreement that the recess appointment of Craig Becker and Mark Peace is the right thing for all working Americans.”

Mark Pearce, another union-side lawyer, was appointed on Saturday as well. Pearce was a founding partner of the Buffalo, New York, law firm of Creighton, Pearce, Johnsen & Giroux, where he practiced union side labor and employment law before state and federal courts and agencies. Earlier in his career, he worked as a Board attorney. Pearce has taught at Cornell University’s School of Industrial Labor Relations Extension and is a Fellow in the College of Labor and Employment Lawyers. Pearce received his JD from State University of New York.

The NLRB nomination process has taken on additional weight with the Supreme Court recently hearing oral arguments on whether the Board’s current two-member panel has the authority to issue decisions or, in Justice Scalia’s words, to function at all. Three of the NLRB’s five seats have been vacant since January 2008. The two remaining members—Chair Wilma Liebman and Member Peter Schaumber— have issued decisions in nearly 600 cases in which they have been able to agree. In a statement welcoming the new members, Board Chair Wilma Liebman said, “I look forward to beginning work with them, and especially to addressing cases that have been pending for a long time.”

EEOC appointments. Also on the list of recess appointments are the president’s four EEOC nominees: Jacqueline A. Berrien to serve as chair, Victoria A. Lipnic and Chai R. Feldblum to serve as commissioners, and P. David Lopez to serve as general counsel.

While the Senate HELP Committee approved the EEOC nominees on December 10, 2009, the full Senate failed to vote on them before leaving for recess on December 24, which left the EEOC lacking a quorum for the first time in 30 years. Since then, a hold has been placed on the nominees’ Senate confirmation vote, according to multiple media reports. The hitch: Georgetown Law Professor Feldblum, whose nomination has been opposed by numerous conservative organizations, including the American Family Association, Focus on the Family, the Liberty Counsel and the Traditional Values Coalition.

Feldblum played a leading role in drafting the ADA and later, as a law professor, in the passage of the ADA Amendments Act. She has also worked on advancing lesbian, gay, bisexual and transgender rights. As for the other nominees, Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund. Lipnic, a Republican, is employed as of counsel in the Washington, DC office of Seyfarth Shaw LLP; she previously served as assistant secretary of labor for employment standards from 2002 to 2009, and before that, counsel to Republican members of the House Education and Labor Committee. Lopez, a supervisory trial attorney with EEOC’s Phoenix office, has served at EEOC for 13 years in both field and headquarters positions. Prior to joining EEOC, he worked in the DOJ’s Civil Rights Division.

Anticipating the possibility that the Senate might not vote on Obama’s nominees for EEOC Chair and the two commission seats before adjourning, outgoing Acting Vice Chair Christine Griffin, Acting Chair Stuart J. Ishimaru and Commissioner Constance Barker on December 18 signed a document that temporarily delegated to Ishimaru and Barker the authority to act on matters usually reserved for the five-member commission, according to EEOC spokesperson Charles Robbins. The delegation of authority will end once the quorum is restored, allowing the agency to effectively reduce its backlog of discrimination charges and implement its final rules on the ADAAA and the Genetic Information Nondiscrimination Act.

A recess appointment occurs when the President fills a vacant high-level policymaking position in a federal department, agency, board or commission while the Senate is in recess. Obama Administration appointees have faced an unprecedented level of obstruction in the Senate, the White House said. The 15 nominees named on Saturday have been pending for an average of seven months. President Bush had made 15 recess appointments by this point in his presidency, but he was not facing the same level of obstruction. “Following their appointment, these nominees will remain in the Senate for confirmation,” according to the White House. Recess appointees’ terms expire at the end of the Senate’s next session or when the individual is confirmed and permanently appointed to the position, whichever occurs first.

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