Explainer: Will New Appointees and Rules at the NLRB Revive Union Organizing?

Explainer: Will New Appointees and Rules at the NLRB Revive Union Organizing?

Explainer: Will New Appointees and Rules at the NLRB Revive Union Organizing?

With three new appointments, the National Labor Relations Board is showing signs of strength.


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.  

Despite its modest content, the Chamber of Commerce filed a legal challenge to the election rule before it was even released, claiming that rule would promote “ambush elections” and ensure that “the only information workers will get will come from the union.” In reality, workers frequently hear from one side only during NLRB elections—the employer side. Employers have exclusive access to employees at the workplace, and use this access to force them to attend mandatory “captive audience meetings.” Supervisors who refuse to campaign against the union can be fired. Corporations frequently employ union avoidance specialists to convey their anti-union message.

So why did the board delay and scale back the original election rule?

In July, the board held two days of public hearings on the election rule—the first public hearings since the 1980s—and received over 65,000 comments. The sole Republican member on the board, Brian Hayes, threatened to resign to deny the board a quorum and prevent the adoption of the rule, and was encouraged to do so by anti-union groups and GOP politicians. The board’s two Democratic members, Mark Pearce and Craig Becker, produced a compromise version of the rule—putting off consideration of several controversial provisions—that was adopted by a two-to-one vote in December, and delayed its implementation until April 2012. While the final rule will likely reduce unnecessary pre-election litigation, it is a significantly scaled down version of the rule proposed in June, which is unlikely to stop the slow strangulation of private sector unionism.

The NLRB is also now requiring employers to post notices informing employees of their rights under the NLRA. Why is that a controversial proposal?

The notice-posting rule, first proposed in December 2010, requires all private-sector employers covered by the NLRA to post 11-by-17" posters—similar to those required under most other labor and employment statutes, including ADA, FMLA, and OSHA—informing employees of their federal labor law rights. The simple poster can be downloaded from the NLRB website. The notice-posting rule is a judicious one, which is designed to tackle a serious problem—employees’ documented lack of knowledge of their NLRA rights.

But this is not how Hill Republicans view it. Thirty-six GOP representatives have joined a legal action by National Right to Work and others against the rule. Despite having supported a mandatory notice informing employees that they could request that their union dues not be used for political purposes, the GOP claims the poster-rule is onerous for employers. The Chamber of Commerce, in all seriousness, claims that the rule is unnecessary because workers can “easily get” information on the NLRA by calling the board or from its website.

The NLRB first delayed the implementation of its rule until January in order to give employers more time to prepare for the change. And now it has further delayed the rule until April, to allow for the resolution of the legal challenge by employer groups and the GOP.

This sounds like it all adds up to an assault not only on the NLRB but the basic rights it enforces. Is there any silver lining?

Three possible silver linings. The NLRB recess appointments (and the appointment of Richard Cordray to head the Consumer Financial Protection Bureau) signal a more determined effort to confront GOP obstruction in Congress. The appointments may energize unions in the November election. And keeping the NLRB in the news, for good reasons or bad, may help generate a debate about the pitiful state of labor rights in the private sector.

In Wisconsin, Ohio and elsewhere, Republicans have put public sector labor rights back on the political agenda. The challenge for labor is how to generate a similar debate in the private sector, and Republican anti-NLRB hysteria may actually help achieve this.

What can we expect from the NLRB and its adversaries in the New Year?

With the recess appointments, the board can continue to function, though it’s unclear if it will engage in any further rulemaking. The board may tackle some significant cases. It may, for example, grant collective bargaining rights to teaching and research assistants at private universities. On the other hand, it’s highly probable that the GOP will intensify its unprecedented crusade to disrupt and intimidate the board. In 2011, the GOP introduced almost fifty bills, hearings, and subpoenas designed to weaken labor rights.

These politically motivated attacks will continue, and the election rule is not yet safe. Sen. Mike Enzi has threatened a Congressional Review Act (CRA), which cannot be filibustered, to block the NLRB election rule, and we will likely see a similar CRA in the House. In addition, the Chamber of Commerce and the Coalition for a Democratic Workplace (the sole purpose of which is to undermine workplace democracy) have filed suit to block the election rule in the courts.

We will also likely see a legal challenge to the recess appointments: an employer that loses a case before the NLRB will attempt to reverse its loss by claiming in litigation that the president’s recess appointments were unconstitutional, and thus the board lacked a quorum and did not legally act. An appeals court will then decide on the legality of the appointments.

Republicans will likely introduce more bills attacking labor rights in 2012. The anti-union lobbying group Center for Union Facts recently announced the launch of a $10 million ad campaign—kicking off with ads in the New York Times comparing US unions with North Korean politicians—in support of Senator Orrin Hatch’s Employee Rights Act. Hatch’s bill would eviscerate the NLRA by outlawing voluntary recognition agreements between unions and employers, mandating lengthy delay in union representation elections, and requiring unions to win new NLRB elections every three years after an initial election victory.

In other words, 2012 will likely be another wild ride for the NLRB.

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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