On Tuesday, February 2, 2010, the Senate Health, Education, Labor and Pensions (”HELP”) Committee held a hearing concerning the nomination by President Obama of Service Employees International Union (”SEIU”) associate general counsel Craig Becker to the National Labor Relations Board.

In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010.

Becker was the only witness at the hearing. Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NLRB nominations to the floor for a full Senate within the next few weeks.

Sen. Harkin commenced Tuesday’s hearing by stating that “we are here today to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board.”  Harkin explained that, although “it has not been the standard practice of this committee to hold hearings on NLRB nominations,” and in fact the last time the Committee held such a hearing was in 1993 on the nomination of the Chair of the Board, “my colleagues on the other side of the aisle have requested a hearing. And while I am reluctant to further prolong the consideration of an obviously well-qualified nominee, I was willing to bend over backwards to accommodate that request because I think the work of the NLRB is tremendously important and deserves this committee’s attention.” 

Harkin called Becker “one of the preeminent labor law thinkers in the United States” and added that “I can say with great confidence, he will be an invaluable addition to the NLRB.”  He remarked that much of the concern about Becker’s nomination seems to be focused on academic articles he has authored.  On this point, Harkin stated that “he has taken a critical approach to existing law … but that’s what academics are supposed to do - to contribute to the marketplace of ideas.” Harkin also pointed out that the Committee has confirmed members with both union and management backgrounds in the past “without any great cause for concern.”

Sen. Johnny Isakson (R-GA), standing in for Ranking Member Michael Enzi (R-WY), asked that two letters received by the Committee on Monday, both in opposition to Becker’s nomination, be included in the record. One letter was from 23 major trade associations, and the other was from an organization representing 600 manufacturers. 

Referring to the controversial Employee Free Choice Act (”EFCA”) currently before Congress, which would allow a union to become certified without a secret ballot election, Sen. Isakson observed that “some have expressed concerns that Mr. Becker’s past writings have indicated a belief that the NLRB has the authority to make some of the dramatic changes included in the card check bill without congressional action.”  Isakson stated that he asked Becker in a private meeting if, as a member of the NLRB, he would attempt to certify a union without a secret ballot election, and that Becker had answered no, the Board can only certify results of Board-conducted elections.

Sen. Isakson then addressed the concern that Becker “has advocated new body of campaign rules that would severely limit the ability of employers to voice their opinion on unionization,” including rules on captive audiences and union access to private employer property.  Again, Isakson stated that, in a private meeting, Becker “has assured me that these comments…were scholarly writings made as a scholar seeking to further meaningful and wide-ranging analysis of the law” and that these statements “will not control his judgment if he is confirmed as a member of the NLRB.”

On the same subject, Sen. Harkin asked Becker to address the concern of some critics that he would attempt to implement the “card check” process proposed in the EFCA administratively. Specifically, he asked Becker to explain how the National Labor Relations Act would constrain the Board’s ability to do so.  Becker replied that the Act “clearly precludes certification in the absence of a secret ballot election.”

Sen. Isakson asked, “Do you favor the NLRB limiting employers’ involvement in the election process?” Becker replied that current law clearly provides employers the right to free speech, citing the National Labor Relations Act and the First Amendment. He emphasized that employers have legitimate First Amendment rights, including the “indisputable right to express views on whether employees should unionize.”

Sen. McCain (R-AZ) asked Becker if he provided advice to ACORN for his current employer, and Becker replied that he had never done so. McCain then asked if Becker discussed labor law or efforts to organize home care workers with former Illinois governor Blagojevich.  Becker responded that he represented SEIU locals in Illinois, which had been working for a long period of time to organize home care workers. He stated that he had discussions with staff of former governor Blagojevich, and, on one occasion, with the former governor himself, on some technicalities related to the drafting of legislation that extended collective bargaining to those workers.

McCain’s most heated questions related to Becker’s intent to recuse himself from any Board matters involving the SEIU, his current employer. Sen. McCain asked Becker, “How many cases involving SEIU will you have to recuse yourself from?” Becker replied that the number is uncertain, but noted that the SEIU itself is rarely a party to Board proceedings.  He stated that he takes his ethical obligations very seriously, and that concerns about his ability to be impartial led to his execution of an ethics agreement, which details the circumstances under which he would recuse myself.  Under the terms of this ethics agreement, Becker pledged that he would recuse himself from any matter on which SEIU is a party for two years. In response to McCain’s questions, Becker promised that “I will comply with the terms of that pledge scrupulously,” to which McCain responded, “That’s not good enough.”

Becker received somewhat friendlier treatment from Sen. Robert Casey (D-PA), who remarked that “we don’t confirm judges that are robots…we confirm people that are human beings, that have a point of view and know how to argue and battle and be advocates.” Casey stated that “we want people who understand what it’s like to advocate for a position, but that doesn’t mean that you can’t exercise a kind of objectivity.”

At the close of the hearing, Sen. Harkin adjourned the Committee until Thursday morning at 10:00 a.m. He announced that any additional questions from members must be submitted before 10:00 a.m tomorrow morning, so that Becker may have time to reply before Thursday.

On Tuesday, February 2, 2010, at 4:00 p.m., the most controversial of President Obama’s nominees to the National Labor Relations Board (”NLRB”), Service Employees International Union associate general counsel Craig Becker, will appear at a hearing before the Senate Health, Education, Labor and Pensions (”HELP”) Committee. In 2009, Sen. John McCain (R-AZ) placed a “hold” on Becker’s nomination and requested a hearing, effectively derailing Becker’s nomination. After the Senate returned the Becker nomination when it adjourned in December, President Obama renominated Becker on January 20, 2010 by President Obama.

Senate Republicans contend that Becker’s union ties and prior writings raise serious questions about his suitability to serve on the five-member board. Before relenting this week, Sen. Harkin (D-IA) and other Senate Democrats rejected these arguments, noting that by virtue of the partisan appointment process to the Board, in which the White House appoints a three-to-two partisan majority, Board members typically have union or management ties. Becker has submitted written answers to over 280 written questions from HELP Committee Republicans and made himself available to meet individually with Senators critical of his nomination, but Senate Republicans, led by Sen. McCain, have insisted that a formal confirmation hearing be held. 

By holding a hearing, Senate Democrats are seeking to break an impasse in the Board that has left it short-handed since early 2008. For several years, the Senate has considered multiple nominations to the NLRB in a bloc and Senate Democrats have continued to insist that Becker be voted on with President Obama’s other two nominations, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes. As a result, the Pearce and Hayes nominations have remained in limbo, and neither nominee received a floor vote in 2009. Previously, in 2009, the Senate HELP Committee voted 15-8 to send Becker’s nomination to the Senate floor, with two Republicans joining committee Democrats voting in Becker’s favor.

At the time of publication, Becker is the only scheduled witness at the hearing.  Sen. Harkin has scheduled a February 4 meeting, at which time the committee is expected to vote on Becker’s nomination. If Becker is approved again by the HELP Committee, Democrats are expected to try to bring the NRLB nominations to the floor for a full Senate within the next few weeks.

On January 20, 2010, President Obama renominated Service Employees International Union (SEIU) associate general counsel Craig Becker to the National Labor Relations Board. The Senate returned Becker’s controversial nomination to the White House on December 24 when it adjourned sine die.

In 2009, the Senate HELP Committee voted 15-8 in favor of sending Becker’s nomination to the Senate floor, but Sen. John McCain (R-AZ) immediately placed a “hold” on Becker’s nomination, effectively barring a vote on the nomination. Sen. McCain will likely re-issue a hold on the nomination.

President Obama’s other two pending NLRB nominees, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes, did not receive floor votes after their unanimous approval by the HELP Committee, but their nominations were not returned to the White House. President Obama and Senate Democrats seek Senate consideration of all three nominations in a bloc, in line with recent Senate confirmation practices.

Becker’s nomination will be considered again by the Senate HELP Committee. If approved a second time by the committee, Senate Democrats are expected to seek cloture to limit debate and bring the nomination to the Senate floor for a vote.  It is unclear whether Senate Democrats will be able to overcome Sen. McCain’s hold.

Core Provisions: This resolution calls for the mandatory use of the E-Verify program by employers of workers within the United States as well as enforcement policies that hold both employers and employees responsible for violations of United States immigration law. The resolution also states that it is a “critical responsibility” of the Federal Government to install and sustain border infrastructure and manpower to control the United States borders and protect from unauthorized passage of persons or contraband. Additionally, the resolution states that no immigration reform adopted by Congress should legalize, condone, or grant amnesty for the otherwise unlawful entry or presence of individuals in the United States.

Status: Rep. Jason Chaffetz (R-UT) and twenty-one co-sponsors introduced the resolution on January 21, 2010. It was referred to the House Committee on the Judiciary and the Committees on Education and Labor, and Homeland Security on the same day.

On December 24, 2009, the Senate returned seven nominations to the White House as it adjourned sine die until January 20, 2010. The returned nominees included Craig Becker, an Service Employees International Union (SEIU) associate general counsel who had been nominated by President Obama to the National Labor Relations Board on July 9, 2009. 

The Senate HELP Committee voted 15-8 in favor of sending Becker’s nomination to the Senate floor, but Sen. John McCain (R-AZ) immediately placed a “hold” on Becker’s nomination, effectively barring a vote on the nomination. Sen. McCain requested a hearing on Becker’s nomination because he had “concerns regarding Mr. Becker’s written views, which indicate that he would prevent employers from having a role in union representation elections in their workplaces by doing away with requiring fair, secret ballot union elections when requested by an employer.” HELP Committee Chairman Tom Harkin (D-IA) stated that a hearing was not necessary and departed from longstanding Senate practice.

According to a Congressional Research Service report, under Senate rules, unconfirmed nominations are returned to the president at the end of a session or when the Senate adjourns for more than 30 days unless the Senate unanimously consents to holding the nomination over until the Senate reconvenes. President Obama’s options include resubmitting Becker’s nomination in January, making a recess appointment of Becker, or submitting a new nominee. The White House has not issued any statement on the return of the Becker nomination.

President Obama’s other two pending NLRB nominees, Democrat union attorney Mark Pearce and Republican Senate staffer Brian Hayes, did not receive floor votes after their unanimous approval by the HELP Committee, but their nominations were not returned to the White House.

On December 19, 2009, President Obama signed the FY 2010 Defense Appropriations Bill (H.R. 3326) into law. The bill, which passed the Senate 88-10 on December 19, 2009, was nearly held up by a strategic Republican filibuster the previous day, achieving cloture by only four votes (63-33). The filibuster was aimed at stalling the progress of Democratic-sponsored health reform legislation concurrently under consideration in the Senate. The House of Representatives had previously approved the FY 2010 Defense Appropriations Bill on September 16 by a 395-34 vote.

The bill includes provisions to extend unemployment and COBRA benefits and also prohibits Defense Department contractors and subcontractors from requiring their employees and independent contractors to agree to arbitrate certain claims. Those provisions are discussed in greater detail in the Washington Labor & Employment Wire’s previous post on the House’s passing of this legislation.

The FY 2010 Defense Appropriations Bill is Public Law No: 111-118.

Core Provisions: This legislation would amend the Internal Revenue Code to modify the rules concerning the treatment of independent contractors to make it more difficult and costly for businesses to incorrectly classify employees as independent contractors.

In addition to significantly increasing the amount of penalties associated with filing tax returns with incorrect information concerning individuals’ employment status, the bill would change the “safe harbor” provisions of section 530 of the Revenue Act of 1978, which allows employers to designate employers as independent contractors for employment tax purposes, regardless of the workers status as an independent contract under common law test, unless the employer has no “reasonable basis” for such treatment. The amended safe harbor provision would only considered a business to have such a reasonable basis for classifying a worker as an independent contractor if it, or its predecessor, has not treated any other individual holding a substantially similar position as an employee since December 31, 1977, and the business’s treatment of the worker as an independent contractor is in reasonable reliance on: (1) “a written determination … addressing the employment status of the individual or an individual holding a substantially similar position” with the business; or (2) ” a concluded examination (for employment tax purposes) of whether the individual (or an individual holding a substantially similar position) should be treated as an employee ….”

If passed into law, the bill would also grant individuals classified as independent contractors the right to petition the Secretary of the Treasury for a determination of their status for employment tax purposes.

Status: Senator J. Kerry (D-MA) introduced the legislation on December 15, 2009, and it was referred to the Senate Committee on Finance.

On December 16, 2009, the House approved the FY 2010 Defense Appropriations Bill by a 395-34 vote. This most-recently approved version of the Defense Appropriations Bill includes provisions to extend unemployment and COBRA benefits and also prohibits Defense Department contractors and subcontractors from requiring their employees and independent contractors to agree to arbitrate certain claims. 

If signed into law, the bill would extend from nine to fifteen months the 65-percent COBRA health insurance subsidy for individuals who have lost their jobs. While the previous extension of COBRA benefits passed by Congress earlier this year applied to individuals who were involuntarily terminated between April 1, 2008 and December 31, 2009, this bill would extend the job loss eligibility date to February 28, 2010. In addition, the bill would extend previously expanded unemployment benefits, including increased payouts and longer duration of benefits, through February 28, 2010.

The Defense Appropriations Bill would also prohibit defense contractors or subcontractors from entering into or enforcing any agreement with their employees or independent contractors that would require them to arbitrate claims under Title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention. This provision would apply to contracts over $1 million that are awarded more than sixty days after the effective date of the Act. The bill would, however, allow the Secretary of Defense to waive this prohibition if necessary to avoid harm to the national security interests of the United States.

The bill now moves to the Senate for consideration. The Senate previously passed a different version of this appropriations bill in October.

On Sunday, December 13, 2009, the Senate approved the $446.8 billion fiscal year 2010 consolidated appropriations bill (H.R. 3288), on a 57-35 vote. The omnibus bill consolidates six of the seven remaining fiscal year 2010 appropriations bills: the Commerce, Justice, Science, and Related Agencies Appropriations Act (H.R. 2847); the Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act (H.R. 3293); the Financial Services and General Government Appropriations Act (H.R. 3170); the Military Construction and Veterans Affairs Appropriations Act (H.R. 3082); the Department of State, Foreign Operations, and Related Programs Appropriations Act (H.R. 3081); and the Transportation, Housing and Urban Development and Related Agencies Appropriations Act (H.R. 3288). 

Under this omnibus appropriations bill, the Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission will all receive increased funding in FY 2010. The Department of Labor’s budget will increase $431 million from FY 2009, the National Labor Relations Board’s budget will increase $20.8 million from FY 2009, and the Equal Employment Opportunity Commission’s budget will increase $23 million from FY 2009. In total, under the bill the Department of Labor will receive $13.3 billion in discretionary funding, the National Labor Relations Board will received $283.4 million, and the Equal Employment Opportunity Commission will receive $367.3 million.  

If signed into law, the bill will also provide funding for the Justice Department’s Civil Rights Division ($145 million), the Federal Mediation and Conciliation Service ($46.7 million), the National Mediation Board ($13.5 million), the Occupational safety and Health Review Commission ($11.7 million), the Federal Mine Safety and Health Review Commission ($10.4 million), the U.S. Commission on Civil Rights ($9.4 million), and the National Council on Disability ($3.3 million).

As noted in the Senate Appropriations Committee summary, the bill would also present additional targeted funding for unemployment insurance program operations ($3.2 billion), dislocated worker employment and training ($1.4 billion), the Department of Labor’s “worker protection” agencies that regulate pensions, mine safety and health, occupational safety and health, wage and hour rules, and federal contractor compliance ($1.6 billion), and military veteran’s employment and training ($256 million).

The House previously approved the omnibus bill on December 10, 2009, on a 221-202 vote. The legislation now moves to the White House to be signed by the President. President Obama is expected to sign the bill.

On December 1, the Senate Judiciary Committee held a hearing to consider legislation that would reverse two recent Supreme Court rulings that heightened the civil pleading standard. The hearing, called “Has The Supreme Court Limited Americans’ Access To Courts?”, was held to discuss the Notice Pleading Restoration Act of 2009 (S. 1504), introduced July 22 by Sen. Arlen Specter (D-Pa) and co-sponsor Russ Feingold (D-WI).  

The legislation would reverse Bell Atlantic Corporation v. Twombly, issued in 2007, and Ashcroft v. Iqbal, issued in May.  In Twombly, an antitrust case, the Court held that a complaint must contain facts that plausibly entitle the plaintiff to relief instead of mere conclusory statements. The Iqbal decision extended this standard to all civil complaints. The Act would restore the more lenient notice prior pleading standard articulated in Conley v. Gibson, which held that a court could dismiss a complaint only if it appeared without a doubt that a plaintiff would be able to prove no set of facts in support of her claim.

In his opening statement, Senator Patrick Leahy (D-Vt), Chairman of the Judiciary Committee, testified that the two decisions are “just the latest example of conservative judicial activism” and that legislation was necessary to ensure that Americans could access the court system. Leahy stated that the new precedent “will result in prematurely closing the courthouse doors on ordinary Americans seeking the meaningful day in court that our justice system has provided” and noted that “wealthy corporate defendants” “would prefer never to be sued and never to be held accountable.”

The committee heard testimony from Stephen Burbank, a professor at the University of Pennsylvania Law School, who expressed his concerns that the Court’s recent decisions “may contribute to the phenomenon of vanishing trials, the degradation of the Seventh Amendment right to jury trial, and the emasculation of private civil litigation as a means of enforcing public law.” He testified that “the primary purpose of any legislation responding to the Court’s decisions should be to restore the status quo” “until careful study, enabled by a process that is open, inclusive, and thorough, supports the need for change.” 

John Payton, President of the NAACP Legal Defense and Educational Fund, testified that the heightened pleading standards create “a real danger” that “meritorious civil rights cases will be dismissed.” Payton urged Congress to “act immediately” to protect victims of discrimination.

On the other hand, former Solicitor General Gregory Garre defended the Court’s decisions and testified that Twombly and Iqbal were “correctly decided” and “firmly grounded in decades of prior precedent.” Garre warned that permitting cases with “implausible” claims to go forward would result in “enormous costs.”