A foreign power, in theory, has no authority to dictate another nation's domestic policy. But don't remind the National Labor Relations Board. Late in July the NLRB and Mexico's Foreign Ministry signed a letter of cooperative agreement to promote the rights of Mexican workers on U.S. soil, regardless of their legal status. The pact commits the board to work with Mexican consulates in notifying that country's workers in the U.S. of their rights and to investigate employer violations of labor law against their workers here.
The National Labor Relations Board now will have something it hasn't had in a decade: five full-term members. Just one hour ago, the full Senate approved all five nominees to the board following a deal two weeks ago to break a logjam over two recess appointments. And it's Republicans who appear to have been taken. On July 16, President Obama had named Democrats Nancy Schiffer and Kent Hirozawa to slots vacated by Sharon Block and Richard Griffin, the result of a federal appeals court ruling this past January. Schiffer until last year served as AFL-CIO associate general counsel; Hirozawa is chief counsel to current NLRB Chairman Mark Pearce.
The National Labor Relations Board, strictly speaking, should have shut down nearly five months ago. But it has kept on going anyway. And even if President Obama's slate of five nominees takes office, the issues surrounding its legal limbo almost certainly will continue onward to the Supreme Court. On May 22, the Senate Labor Committee approved all five and sent their names in one package for a full floor Senate vote. In February the president had re-nominated two members, Sharon Block and Richard Griffin, both of whose recess appointments were declared unconstitutional on January 25 by a federal appeals court.
The National Labor Relations Board may be inoperative at present. Yet one of its rulings last month, unless undone, will curtail a longstanding right of employers and individual workers. On December 12, in WKYC-TV Inc., the NLRB ruled 3-1 that an employer must continue to collect dues from union members via automatic "checkoff" even after the collective bargaining agreement expires. The ruling effectively overturns the board's Bethlehem Steel decision of 1962, which ruled against forced dues check-offs following contract expiration. It's another case of President Obama's appointees to the normally five-member body favoring forced unionism.
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."
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.
Labor unions in this country for nearly four decades have operated with a grant of near-immunity from the consequences of intimidating employers and non-joining workers or destroying their property. An ongoing federal racketeering and extortion case against upstate New York's International Union of Operating Engineers (IUOE) Local 17 is underscoring how readily union attorneys rationalize their clients' "right" to terrorize. The case has taken on an added significance in light of legislation recently introduced to close this loophole, a product of a misguided Supreme Court ruling. Even more noteworthy, one of the attorneys for the local is a former law partner of Mark Pearce, the latter recently becoming chairman of the National Labor Relations Board (NLRB). It's a small world.
The National Labor Relations Board soon will be back up to five members. But for more than two years it was short by three. Observers wondered how it managed to function. The U.S. Supreme Court last Thursday ruled it shouldn't have. By a 5-4 margin, the High Court ruled that the NLRB, its ranks diminished by congressional gridlock, had violated its statutory authority in deciding cases during that time. Justice John Paul Stevens, writing for the majority in New Process Steel v. NLRB (U.S. No. 08-1457), termed the two-member board's operations a "Rube Goldberg-style delegation mechanism...surely a bizarre way for the Board to achieve the authority to decide cases." The decision could reopen up to 600 NLRB decisions. That's a workload the board no doubt wishes it could do without.