The National Labor Relations Board (NLRB), normally with five members, now has three. And not long from now, it may have just one. President Obama's apparent desire to circumvent Senate intent is part of the problem. On Wednesday, December 5, a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in a case concerning Obama's filling of three vacant NLRB slots nearly a year ago. The case, Noel Canning v. NLRB, originated in a complaint filed by a Washington State business that the president had usurped the Senate's constitutional powers of appointment because lawmakers were not in recess. And since these were not actual recess appointments, the president lacked the authority to make them. The eventual outcome will have implications for the board's ability to operate over the long term.
Labor officials long have sought to severely limit the ability of employers to mount a challenge to organizing campaigns. Recently, that quest was fulfilled - for two weeks. On May 14, the U.S. District Court for the District of Columbia struck down the final "quickie" or "ambush" election rule issued by the National Labor Relations Board (NLRB). This regulation, which had gone into effect on April 30, shortened the normal allowable duration between the filing of an election petition and the holding of a vote from 42 days to as few as 10 days. U.S. District Judge James Boasberg, on procedural grounds, held that the rule was developed by only two board members, and thus lacked a necessary quorum. Suspending the regulation indefinitely, Boasberg declared: "Representative elections will have to continue under the old procedures."
Republican objections to President Obama's temporary appointments last week to the National Labor Relations Board (NLRB) haven't been unexpected. The board, by custom, must consist of three members of one major party and two of the other. And so long as he remains in the White House, Democrats will enjoy an automatic majority. But at least two appointments may also be unconstitutional, say critics. That's because the president's referrals to the Senate of the two Democratic nominees, Sharon Block and Richard Griffin, were made during a period in which senators were not on official recess.
Unions for many years have been a highly reliable segment of the Democratic Party Left. Yet this perhaps no more was this true than in 2011 - and with good reason. The year began with the Republicans holding a nearly 50-seat edge in the House of Representatives following the GOP's smashing wins in the November 2010 midterm elections. Avoiding legislative process became a top priority for organized labor.
If the Democratic-majority National Labor Relations Board (NLRB) under the Obama administration has become a de facto union law firm, then its proposed rule mandating "fast-track" or "ambush" elections loomed as its crowning achievement. Two days ago, on Tuesday, December 20, that proposal became final. By a 2-to-1 margin, the board approved a regulation it had unveiled this June ostensibly to speed up union representation election campaigns and avoid frivolous litigation.
For organized labor, the National Labor Relations Board (NLRB) during the Obama years has become a de facto legislative body, issuing rules and rulings to give unions extra advantages in organizing and bargaining that Congress won't enact. Not surprisingly, union officials are dismayed over a vote in Congress last week to block a proposed NLRB regulation to shorten the time frame for holding representation elections and a board ruling expanding the leeway for forming workplace "micro-unions." Last Wednesday, on November 30, the House of Representatives by 235-188 passed the Workforce Democracy and Fairness Act (H.R. 3094), which, among other things, would counteract a "quickie" or "ambush" election rule unveiled by the NLRB in mid-year. Meanwhile, the Senate has come out with a similar bill focusing on the micro-union issue.
It's almost given that a Democratic member of the National Labor Relations Board (NLRB) has at least some background as a union lawyer. Craig Becker, who long had been associate general counsel for the Service Employees International Union (SEIU) before obtaining a recess appointment to the board by President Obama in March 2010 following a Senate GOP filibuster, fits the pattern. But he also may have gone that extra mile, helping to prepare an SEIU manual on how to intimidate employers. Sen. Orrin Hatch, R-Utah, wants to know more. On September 12, Hatch wrote a letter to Becker asking him to clarify what role he had, if any, in drafting the document. As Becker is up for Senate approval for a full-term appointment to the (normally) five-member NLRB, his response - or lack of it - may affect the course of board rulings for years to come.
Labor leaders enjoyed a number of triumphs during the 111th (2009-10) Congress. But they are seething over the fact that a Republican Senate minority once again managed to block proposed legislation to force private-sector nonunion employers to recognize a union as a collective bargaining agent if that union persuades a majority of affected workers to sign a card indicating a desire to join. For them, this "card check" legislation is the Big One that got away, especially in a time of continued declining union membership. Given last November's elections, union officials are even less enthusiastic about their prospects in the new Congress. That's why, more than ever, they are turning to the National Labor Relations Board (NLRB) as a de facto legislative body. And the NLRB, given its current composition, may well deliver, piece by piece.
Organized labor, masters of aggressive politics, had its share of triumphs in 2010. With Democrats, their natural ally, the previous year having taken control of the White House and the Senate while increasing their advantage in the House, this was to be expected. AFL-CIO President Richard Trumka and other union officials used their window of opportunity to pressure Congress into passing a health care overhaul mandating unprecedented degrees of government intrusion, and by extension, major opportunities for unionization of the health care labor force. They also secured key presidential appointments.
In placing radical union lawyer Craig Becker on the National Labor Relations Board (NLRB) via recess appointment this past March, President Obama may have unleashed a more potent weapon to advance organized labor's interests than even he realized at the time. In a 3-2 decision on August 27, the board voted to review its ruling of three years ago, Dana Corporation [351 NLRB No. 28 (2007)], which granted dissenting workers the right to undo a successful (i.e., employer-recognized) union card check campaign. The board thus has given unions new ammunition for realizing its top priority of forcing, and not simply authorizing, employers to recognize majority-vote union card check campaigns under the guise of "employee choice." A separate but related issue is why Becker was allowed to cast a vote at all, given his conflict of interest in the case.