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NLRB OKs “ratty” protest (access required)

The rat has long been a symbolic figure in union-management battles. But the National Labor Relations Board has cleared the way for union rats to become much bigger players in labor disputes, reports our sister publication The Daily Record.

The Board ruled that a union had the right to use a 16-foot inflatable rat – a common protest prop used by union members – outside the premises of a company’s supplier or other third party business. While threatening or coercive conduct by union members against third parties is barred, a big inflatable rodent was unlikely to make anyone feel frightened or bullied, the Board reasoned.

The “rat balloon itself was symbolic speech,” Chairman Wilma B. Liebman and members Craig Becker and Mark Pearce said of the inflatable creature set up outside a hospital construction project. “It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.”

NLRB back to full staff, but with one member snub

Just days after a U.S, Supreme Court’s ruling demonstrated the danger of having an understaffed National Labor Relations Board, Tuesday the Senate confirmed two of President Barack Obama’s nominees to the Board: Democrat Mark Pearce and Republican Brian Hayes. That brings the Board to a full five operating members for the first time since 2007.

But the Senate did not confirm Obama’s third nominee to the board, former labor union lawyer Craig Becker, whose nomination sparked heated opposition from some Republicans and business groups who expressed fear that Becker would use Board rulings to usher in a “card check” union voting rule on an administrative level. Such a rule would allow employees to organize by a show of card instead of a secret balloting process. Legislation that would have authorized the change stalled in Congress last year.

Becker was installed on the Board in March as a recess appointment.

Yesterday the Senate confirmed Obama’s nominees for more than 60 posts ranging from judgeships to U.S. attorneys to agency positions.

Monday status conference: Return of the Supremes

The US. Supreme Court resumes oral arguments today with two high-profile cases.

First the justice will take up whether a public university law school can deny funding and recognition to a religious student organization that bans non-religious and gay students from its membership in Christian Legal Society v. Martinez.

Then the justices take up City of Ontario v. Quon, a case considering whether employees have a reasonable expectation of privacy in the text messages they send using electronic devices supplied by their employer. The case could have wide-ranging implications affecting how employees use the cell phones, laptop computers and other equipment given to them to use on the job.

More on these arguments, as well as any newsworthy orders today from the Court, later on this blog and on Lawyers USA online.

Meanwhile, in other news:

Scalia speaks: During the Court’s latest recess, several justices took to the lecture circuit. Justice Scalia spoke Friday at the University of Virginia, where he used to be a law professor, and discussed – wait for it – originalism.  (Charlottesville Daily Progress)

Breyer’s prediction: Meanwhile, while testifying last week along with Justice Clarence Thomas before Congress, Justice Stephen Breyer predicted that the new health care reform law would probably end up before the Supreme Court for review. (AP)

Not ready for a close-up: Would you like to see Supreme Court proceedings televised? Don’t hold your breath, Breyer said. (Washington Post)

The absent justice? If Solicitor General Elena Kagan becomes a Supreme Court justice this summer, she may have to recuse herself from a host of cases being considered by the Court. Might that harm her chances of getting President Obama’s nod? (SCOTUSblog)

New issue in NLRB case: The Supreme Court asked the attorneys for the parties in the case testing the authority of the former two-member National Labor Relations Board to file supplemental briefs on the effect of the two recent appointments. (SCOTUSblog)

Clinton‘s SCOTUS advice: Former President Bill Clinton thinks President Obama should pick a young non-judge to replace retiring Justice John Paul Stevens. And neither he nor his wife fit the bill, he added. (AP)

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

Potential roadblock for NLRB nominee

UPDATE: Becker’s nomination was blocked in the Senate Tuesday afternoon. The lawmakers voted 52-33 to move forward with Becker’s nominatoin, short of the 60 needed to overcome a filibuster.

Today Senate Republicans, fresh off the addition of a 41st member in Massachusetts Sen. Scott Brown, may test their filibuster power on one of President Obama’s nominees for the National Labor Relations Board.

Members of the Senate are set to take a procedural vote on Craig Becker’s nomination, which would fill one of three vacancies that has hamstrung the normally five-member agency. It takes 60 votes to end debate over Becker’s nomination and send it to a full vote. But if Republicans join in opposition, that number won’t be reached.

Even Sen. Ben Nelson, a conservative Democrat, said he would join GOP members in voting no on Becker.

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement.

Some lawmakers cite legal writings by Becker supportive of measures such as card check elections. The U.S. Chamber of Commerce has been vocal in its opposition. But Sen. Tom Harkin, chairman of the Senate Health, Education, Labor and Pensions Committee, said the criticism is unwarranted, a single NLRB member couldn’t implement such massive changes to the labor law system even if he wanted to.

“I don’t have any illusions that those important changes can somehow be accomplished administratively and neither does Craig Becker,” Harkin said.

Brouhaha over Becker’s NLRB nomination

While nominees to the National Labor Relations Board have historically faced a low key and drama-free road to confirmation, recently it seems nothing involving the NLRB is without controversy. And the nomination of Craig Becker, President Barack Obama’s pick to fill one the three vacancies on the Board, is no exception.

As you know, the normally five-member board has operated with only two members for more than two years. And the validity of opinions the Board has issued since January 2008 are now in question, and the Supreme Court is set to decide if the rulings were made by a properly constituted quorum.

President Bush’s nominees to fill the vacancies stalled in the Democratic-controlled Senate. And now Becker’s nomination is facing strong opposition by Republicans and business groups who say the former attorney for the Service Employees International Union and AFL-CIO would usher in anti-business policies.

As Becker appeared at a hearing held on his nomination yesterday – the first time in 17 years that a hearing has been called to vet a NLRB nominee – The U.S. Chamber of Commerce blasted Senate Democrats, accusing them of trying to jam Becker’s nomination through before the Senate’s newest Republican, Sen.-elect Scott Brown, is seated.

“For the first time since 1993, the Chamber is taking the unusual step of opposing a nominee to the NLRB,” said a statement from Randel K. Johnson, the Chamber’s vice president for Labor, Immigration, and Employee Benefits. “It would be an egregious mistake and would set a dangerous precedent for the Senate to push this nomination through during a lame-duck period. The NLRB has the ability to unduly increase union power and leverage it without intervention by Congress. Confirming Becker will tilt the balance in labor law dramatically in favor of union special interests.”

Sen. Tom Harkin, the Democratic chairman of the Senate committee vetting Becker’s nomination, said Democrats have given GOP members what they want.

“We are here, today, to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board,” Harkin said at the hearing.  “It has not been the standard practice of this Committee to hold hearings on NLRB nominations…However, 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 accommodate that request because I think the work of the NLRB is tremendously important and deserves this Committee’s attention.”

But Republicans including Sen. John McCain grilled Becker over issues such as card check elections and how Becker would handle cases involving the unions he worked for in the past.

Becker said he would rule fairly and recuse himself when necessary. “I will abide, Sen. McCain, with the terms of that pledge scrupulously, and as I indicated, if any other matters come up outside of the scope of that pledge where any party might think that I might not be impartial, I will consider the matter…. and if necessary recuse myself from those cases,” he said.

“That’s not good enough,” McCain replied.

Fate of hundreds of NLRB rulings rests with Supreme Court

For nearly two years, the normally five-member National Labor Relations Board has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.

Since then the Board has issued more than 400 opinions.

But yesterday the U.S. Supreme Court agreed to consider whether the two-member Board had the authority to continue to operate, throwing the validity of all those opinions in doubt. The split in the circuits on this issue has created a conundrum for labor lawyers.

President Obama sent three nominations to the Senate to fill the empty seats in July, and last month the Senate HELP committee advanced the nominees for full Senate consideration.

Monday status conference: Stevens says he’s no spring chicken

Ever since news broke that Justice John Paul Stevens had only hired one clerk so for the October 2010 Supreme Court term, speculation has swirled over whether the justice – who is now the second oldest to hold a seat on the bench, and the fifth longest-serving justice ever – would retire.

USA Today‘s Joan Biskupic put the question right to him. And while he declined to discuss his retirement plans, he answered the question of whether retirement was a possibility with a resounding: Duh!

“That can’t be news,” Stevens, 89, said. “I’m not exactly a kid.”

Biskupic’s very interesting profile of Stevens can be found here.

Meanwhile, let’s open the week with stuff that actually is news:

Sticking to the script: Justice Sonia Sotomayor said her confirmation process was so carefully scripted, here her clothes were picked out for her. (The New Haven Register)

Strange allies: Might medical device manufacturers, who have refused to offer direct financial concessions to help pay for health-care reform, have an ally in their home state lawmaker – Minnesota Democrat Sen. Al Franken? (The Washington Post)

New pot policy: Federal prosecutors will no longer go after medical marijuana users and suppliers as long as they conform to state laws, under new Obama administration policy. (Associated Press)

HELP for NLRB nominee: Despite calls from the U.S. Chamber of Commerce to hold a hearing on NLRB nominee Craig Becker, the Senate Committee on Health, Education, Labor and Pensions is scheduled to vote on his confirmation Wednesday. (WSJ’s Washington Wire)

Cruisin’ for Congress: Federal legislation navigating its way through Congress is aimed at improving safety measures and the reporting of crimes on passenger cruise ships. But lawyers who represent injured passengers and crew members say the legislation doesn’t do enough to address legal loopholes in litigating injury cases against cruise lines. (Lawyers USA)

Another firefighter suit: A black New Haven, Conn., firefighter has filed a federal lawsuit against the city over a promotion exam that was the subject of the U.S. Supreme Court’s landmark ruling in Ricci v. DeStefano in June. (Lawyers USA)

Monday status conference: Budget and stimulus

capdomeThe Supreme Court continues its four-week vacation, as President Barack Obama and congressional lawmakers continue to wrangle not only over the economic stimulus package, but also the federal budget – something that will require careful negotiation and compromise between both parties.

Meanwhile, as you calculate your winnings from the Cards covering the spread last night, here’s a look at the legal news buzz as this week opens:

Split over Crawford: The recent U.S. Supreme Court decision permitting a worker who was fired after answering questions during an internal sex harassment inquiry to pursue a Title VII claim has the defense and plaintiffs’ bars divided over its impact. (Lawyers USA)

Labor rules reversed: President Barack Obama signed several executive orders reversing several Bush administration labor policies. (Lawyers USA)

Presidential/chief justice smackdown? President Barack Obama and Chief Justice John G. Roberts, Jr. agreed on what law school to go to, but the two see eye to eye on little else – and their differences are most pronounced on the issues of affirmative action and Guantanamo Bay. Will this lead to an ongoing beef? Fox News seems to think so. (Fox News)

DOJ extreme makeover: More than any other federal agency, the Justice Department will undergo a diametric shift from former President Bush’s policies to President Obama’s. (NYT)

Rove date pushed back: The House Judiciary Committee has rescheduled a deposition for former senior White House adviser Karl Rove, ordering him to appear Feb. 23 instead of Monday. (AP)

Monday status conference: Busy week on the Hill

capitolfrontAs President Barack Obama begins his first full week as president, Congress will be squarely focused on the economy this week, as lawmakers hold confirmation hearings on the president’s pick to head the Treasury Department and consider economic stimulus legislation. And orders and/or opinions could be coming from the Supreme Court this morning.


It’s more easy being green: Today President Obama will announce plans to give states more leeway in imposing automobile emissions standards. The move is a sharp departure from the Bush administration, whose refusal to grant states the ability to impose tighter greenhouse gas emissions led to a lawsuit between the EPA and 13 states. (NYT)

More to Holder holdup: One of the issues holding up the confirmation of attorney general pick Eric Holder? Some lawmakers want to know whether or not he plans to seek criminal probes of former Bush administration officials over CIA tapes depicting harsh interrogation methods used against two al-Qaeda suspects. (WaPo)

Obama’s labor team: Meanwhile, Obama has named his picks to head the federal agencies in charge of enforcing private sector labor laws and enforcing federal employment discrimination laws. (Lawyers USA)

More Supreme nomination Chatter: If a Supreme Court vacancy opens up this summer, who might get the nod? SCOTUSBlog’s Tom Goldstein thinks that newly-named SG pick Elena Kagan is in a good spot, as are two female federal judges. (SCOTUSBlog)

Peanut butter recall grows: The FDA is continuously adding to the list of peanut putter-containing products that may be tainted with salmonella. Meanwhile food producers like Kellogg are pulling more products from the shelves voluntarily. (MarketWatch)