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Policy: Law

For Obama's labor policy, no setback is permanent

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Opinion,Columnists,Sean Higgins,Labor unions,Barack Obama,Labor,NLRB,Law

Less than two weeks after the Supreme Court ruled unanimously that two of his recess appointments to the National Labor Relations Board were unconstitutional and their decisions therefore void, President Obama renominated one of those appointees, Sharon Block, back to the board.

The only reason why he didn't renominate the other, Richard Griffin, was because he had already appointed him as NLRB chief counsel. Griffin is a former top lawyer for the International Union of Operating Engineers, while Block is a former Ted Kennedy staffer.

Obama could hardly have it clearer that when it came to labor policy he was going to plow ahead with the exact same agenda. Getting slapped down by the Supreme Court was just a setback.

In practical terms, that means Obama and those he has installed in positions of power are going to continue to push pro-labor policies that they have been struggling to get on the books for years.

The NLRB, for example, announced in February that it is working on a new rule to speed up the union election process. This will shorten the window between when the board mandates a workplace election and when it is scheduled from about two months to about two weeks.

This something that Big Labor has long sought because it will hamper Big Business' ability to respond to organizing drives. They will have significantly less time to make the case against unionization. Critics call it the "ambush election" rule.

The NLRB actually passed that rule in 2011, only to have it struck down the following year. A federal judge ruled the board had lacked a proper quorum at the time. So the NLRB is now starting over with a virtually identical proposed rule.

The rulemaking process will likely take months. AFL-CIO President Richard Trumka was happy, though, calling the decision an "important step in the right direction."

This time the rule is more likely to stick too, since Obama was able to get a full five-member board approved by the Senate last year, thus avoiding any question over whether it has a proper quorum.

The NLRB may also cause several bad headlines for non-union Walmart. In January, board attorneys announced they were pursuing charges that the retail giant illegally fired 19 workers for participating in activities related to protests against the company.

The protests were largely stage-managed by Big Labor, particularly the United Food and Commercial Workers. Walmart has been locked in a running battle with them for years over organizing it workforce. The case is ongoing.

It’s a new level of pressure for the company though. The original complaint even named a corporate officer, David Tovar, Walmart's vice president for communications. (The document has been amended since then, but the current version is not publicly available.)

Meanwhile, the Labor Department is currently working on a regulation, called the “persuader rule,” that would require businesses to disclose any time they hire a labor law consultant.

The current rule requires this disclosure only if the attorney talks to the employees. The new rule would require it even if the consultant only advises management in private.

The practical effect will be to drive many lawyers out of labor law consulting altogether. That will limit the options of smaller companies trying to respond to union organizing drives.

This is something the Labor Department has been trying to enact since 2011. The efforts appear to have gotten a boost under Secretary Tom Perez. A final rule is expected by December.

None of this is to say that under Obama the government isn't also plowing new territory on expanding organized labor — witness the NLRB's decision that Northwestern University athletes have a right to unionize — but it shows that they'll keep pushing the long-sought agenda items too, no matter long it takes.

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