By Dmitri Iglitzin and Steven Hill
A pitched battle is taking place behind closed doors over the Obama administration's appointments to the National Labor Relations Board (NLRB). It's unfortunate that the conflict has avoided the glare of the public spotlight, because the outcome of this partisan skirmish may be more important than that over the labor movement's number-one legislative priority, the Employee Free Choice Act (EFCA).
This fight is clearly ideological, pitting progressives and liberals against conservatives, including conservatives within the Democratic Party. But the conservatives have been more vigilant, mobilizing their opposition, while the White House, lacking sufficient pressure from either labor unions or their progressive allies, or from Congressional Democrats busy fighting over healthcare, has been content to avoid any additional bruising conflict.
In keeping with organized labor's wishes, President Obama has nominated two Democrats and one Republican to join the two sitting members, one a Democrat and the other a Republican, on the five-member NLRB. If these nominations are approved by majority vote in the Senate, the NLRB will be controlled by labor-friendly Democrats for the first time since the Clinton administration.
To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:
* drastically shorten the time frame for holding union elections;
* eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;
* require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;
* require equal access to both workers and the workplace for unions during campaigns; and
* increase the penalties on companies that violate their workers' legal rights.
The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.
The Democrats appointed by President Obama have considerable skin in the game. The sitting Democrat, Wilma Liebman, formerly with the Bricklayers and Teamsters unions, is a longtime hero to organized labor for her eloquent dissents from numerous antilabor decisions issued by the Bush-appointed board. Mark Pearce, one of Obama's current appointees, also is a longtime union advocate.
But it is not Liebman or Pearce who has business interests petrified, but one of Obama's other appointees, Craig Becker. Becker serves as associate general counsel to the Service Employees International Union and the AFL-CIO.
Becker has argued that employers "should be stripped of any legally cognizable interest in their employees' election of representatives." In practice, this means that employers could no longer oppose union organizing drives through NLRB or other administrative proceedings but would instead become mere bystanders in that process, removing one of the most powerful tools in the employer arsenal of antiunion strategies. It is because of these types of opinions that the Wall Street Journal has called Becker "labor's secret weapon" and accused him of wanting to "rig the rules to favor unionization."
Becker's nomination last spring triggered a seesaw controversy that has been playing out for months. On Christmas Eve the Senate officially "returned to the White House" Becker's nomination after Senator John McCain "put a hold" on Becker. Labor advocates were concerned that President Obama would quietly drop Becker's appointment, but to the president's credit he plans to renominate Becker (though Obama could have gone even further and given Becker a recess appointment, a power former President Bush was never reluctant to use).
To date, none of Obama's three appointees have been confirmed by the Senate; they remain mired in political quicksand. Without a stronger push from the White House, few are expecting this battle to conclude anytime soon. And without more pressure from unions, the grassroots and labor-supportive Beltway forces, the Obama administration feels little compulsion to move.
In the meantime, few beyond labor insiders even know what's going on. The saga of the NLRB nominations has stayed out of the spotlight, except for right-wing blogs and unionbusting law firms' newsletters sent to employers. On January 14 the New York Times reported that the NLRB, with only two of its five members seated for the past two years, has become near comatose. Not only are there a very high number of tie votes on disputed issues but the legal validity of the decisions issued by those two members, even when they agree, is currently the subject of conflicting federal court decisions. In May the US Court of Appeals for the District of Columbia held that because two members do not constitute a quorum of a five-person board, the NLRB decisions currently being issued are not legally binding. That issue is pending before the Supreme Court but is not likely to be resolved soon.
The battle over nominations to the NLRB, even more than EFCA, may be what really determines the extent of labor's gains under Obama. Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB. But White House loyalty to these nominees may never gain sufficient spine unless labor and its progressive allies mobilize to push Congress to finish the confirmation process. Without mobilization, this episode may end up being yet another example of Obama's promises not being realized and hopes going unfulfilled.
Dmitri Iglitzin is a labor attorney in Seattle with the firm of Schwerin Campbell Barnard Iglitzin & Lavitt, and a frequent commentator on labor issues. Steven Hill is director of the Political Reform Program of the New America Foundation and author, most recently, of Europe's Promise: Why the European Way is the Best Hope in an Insecure Age.
Clarification: NLRB nominee Craig Becker has written that in National Labor Relations Board proceedings related to unionizing, where a union or workers file for a "Board election"in order to form or dissolve a union, there is nothing in the National Labor Relations Act which compels the NLRB's current policy, which is to permit the employer to be an active participant either favoring, opposing or even obstructing such an election. However, The Nation wishes to make it clear that Becker has never advocated that employers be prevented from participating in other NLRB proceedings, such as those involving alleged unfair labor practices, nor that employers be forbidden from exercising their "free speech" right to oppose union drives. Becker has made it clear that employers should retain the right to protect their legitimate interests before the NLRB.
This article was published in The Nation, January 20, 2010.