Recently, Obama made three appointments to the National Labor Relations Board, adding two Democrats and one Republican, and the NLRB promulgated a new rule to speed union representative elections in workplaces where employees are trying to organize. Both are signs of strength for the embattled board—and both drew widespread criticism from Republicans. To explain the likely impact of the appointments and the new rule, The Nation talked to John Logan, professor of labor and employment studies at San Francisco State University.
Why was there so great an uproar from Congressional Republicans over the appointments?
Recess appointments to the NLRB are not unusual. The Bush administration made six recess appointments to the board. What’s unusual in this case is that Republicans in Congress have attempted to block recess appointments by holding pro forma Senate sessions, during which no business is conducted, every three days since December 16, in order to argue that the Senate has not officially been in recess. Obama argues that the appointments are both justified and legal because the Senate has been in “sustained recess,” despite the gimmicky pro forma sessions. And on January 12, the Justice Department, which conveyed its opinion to the White House prior to Obama’s action, released a memorandum opinion stating that the president has the authority to make such appointments.
The broader context for these recess appointments is important to note. The GOP would almost certainly have blocked the president’s Democratic nominations—union-side lawyer Richard Griffin and Department of Labor deputy assistant secretary Sharon Block—after all, Senator Lindsey Graham of South Carolina had vowed to render the board inoperable. In 2010, the Supreme Court decided (New Process Steel LP v. NLRB) that a two-member board cannot exercise the full authority of the five-member board—which ordinarily includes three from the Administration’s party, two from the opposition party, who are appointed to five-year terms. Had Obama not made the appointments, the board, which conducts union elections and investigates and remedies unfair labor practices, would have been reduced to two members and lacking a quorum.
Nonetheless, the recess appointments have provoked outrage among Hill Republicans and corporate America. Prior to the appointments, all forty-seven GOP Senators wrote to Obama warning that recess appointments could cause a “constitutional conflict” between the Senate and the White House, and afterwards, the president’s opponents have attacked him as a “constitutional anarchist.” Representative John Kline, chair of the Republican-controlled House Education and the Workforce Committee, has requested all documents relating to the appointments from both the NLRB and White House, while Representative Diane Black and seventy-one other Republicans have introduced a nonbinding resolution condemning the appointments. A Washington Post editorial, on the other had, called the appointments a “justifiable power grab” by the President.
In the past year, the NLRB has attempted to streamline union certification elections (that is, elections in which employees vote to form a union or not). Are election procedures really a stumbling block to unionization?
Anti-union employers have long fought unionization efforts by delaying certification votes, bringing pre-election grievances and complaints that push back the election. “Union avoidance” adviser Jackson Lewis infamously counseled employers that “time is on your side” —and lengthy campaigns are more likely to involve unfair management practices. So in December, the NLRB issued a long-awaited rule streamlining the union certification process. If it works as intended, the rule will reduce unnecessary pre-election litigation by limiting the issues considered in NLRB hearings, eliminating pre-election board review of regional NLRB directors’ decisions, and adopting other commonsense measures.
Will the new rule stimulate more private sector organizing campaigns?
It’s hard to predict—but the most recent NLRB statistics don’t give much reason for optimism. In the first half of 2011, only 28,567 workers (out of a workforce of 140 million) gained union membership through NLRB elections. The number of union representation elections conducted by the NLRB declined by an astounding 60 percent between 1997–2009. While some organizing is taking place outside the NLRB system, through voluntary card check and neutrality agreements between employers and unions, this pitifully low number is a reflection of how many unions have all but abandoned the NLRB process. It seems unlikely that this modest change in the election process will transform these kinds of numbers.