Wilma Liebman, a past chairman of the NLRB, recently urged the Senate to approve the President's five nominees to the NLRB and end the partisan warfare over appointments to the Board. She contends that giving the Board a full complement of members "serves the public interest in good government and the rule of law." It is, if only numbers count.
What's happening is much more than partisan bickering. It is generated by a clash at the NLRB of two opposing views of the National Labor Relations Act, and it goes to the heart of our commitment to the rule of law and our willingness to insist that high-ranking political appointees adhere to it.
Republican and Democrat members hold opposing views about the Act, which has polarized recent Boards but particularly the Obama Board. Under the Republicans' view, the Board is required to be neutral on the question of unionization. Under the Democrats' view, the Board is charged with favoring the interests of one side--unions--to promote collective bargaining.
Taft-Hartley Revised the Wagner Act
The former view has the support of the Supreme Court, which has ruled that the Act is "wholly neutral" on the question of unionization. The latter view has the support of organized labor, which is alarmed by the loss of union density in the private sector and looks back nostalgically to the 1930s and 40s when the Wagner Act reigned supreme; unions had only rights, not obligations and workers and their employers were restricted in their ability to oppose unionization.
But the Wagner Act was not Congress's last word on the subject. In 1947, Congress "fundamentally changed" the law with the Taft-Hartley Act. Taft-Hartley firmly establishing the principle of workplace democracy as the cornerstone of U.S. labor law. Under the Wagner Act, only an employer could commit an unfair labor practice, but Taft-Hartley added union unfair labor practices to the statutory scheme. Taft-Hartley gave workers the "right to refrain" from union organizing activity and recognized an employer's right to non-coercively express its opposition to the union.
The former chairman and union-side members of the Board share organized labor's view of the law. They use the Act's objective "to encourage the practice and procedure of collective bargaining" to trump specific provisions of the amended Act even though the Supreme Court has already weighed in on the other side of this issue.
Examples of union partisanship abound: The Obama Board stripped workers of their right to challenge, through a secret ballot, the voluntary recognition of a union based on an unreliable card check; promulgated a rule to drastically shorten the time for a Board election, which will limit the ability of employers' to express their views on unionization; and required the posting of a partisan one-sided notice of employee rights. It even re-defined the decades-old definition of "picketing" to enable unions to engage in coercive secondary boycotts against neutral employers outlawed by Taft-Hartley because they harm the economy.
Of the President's current nominees, Mark Pearce, Sharon Block, and Richard Griffin share this view of "the law."
It wasn't always like this
Although challenged in recent years as a result of the decline of union density in the private sector and the pressure felt by Democrat members to respond, the NLRB has a long history of non-partisan cooperation. For example, the former chairman refers to a highly successful two-member board that I began with her when I was chairman. Over a 27-month period we issued nearly 600 decisions, before the Board's authority to issue decisions was successfully challenged in the Supreme Court. We were both Senate confirmed. One of us was a liberal Democrat, a former union-side labor lawyer; the other was a conservative Republican, a former labor neutral. When we decided to issue decisions in cases we could agree upon, we agreed to apply existing Board law. The Board's balanced make-up and its restraint in decision-making gave confidence to the parties in the decisions we issued.
The controversial decision-making of the current Board
Against the above are the activities of the current three-member Board. Two of its members, Sharon Block and Richard Griffin, have been declared by the DC Circuit Court to be "non-members" without authority to act. Nevertheless, the Board has continued to issue decisions without imposing any limits on its decision-making authority including decisions that further develop the law under controversial Obama Board precedent that is pending appeal.
All three Board members are liberal Democrats with acknowledged union sympathies. Because the Board has no Republican members and in light of its brash and immoderate response to a Federal court nullifying its authority, it is no wonder that people subject to the Board's jurisdiction are questioning its fairness.
Thus, it is wrong to dismiss the debate over the current nominees as partisan bickering or intended to put the NLRB out of business; it is about our respect for the rule of law and our willingness to insist that high-ranking political appointees adhere to it.Peter Schaumber is a former member of the NLRB.