EDITORIAL: The ‘new’ NLRB
President Obama’s environmental regulations and tax increases are job killers enough, and now employers must also deal with a fully reconstituted National Labor Relations Board, with two new Democrats and two new Republicans. Mark Pearce, a Democrat, is a holdover as board chairman, which gives the Democrats a 3 to 2 advantage. They’re likely to use the advantage to their partisan advantage. The unions have waited, not so patiently, for the day.
The four new members were sworn into office Monday, giving the board the quorum necessary to conduct business. The old board, lacking a quorum or a majority, made several rulings of dubious legal standing favoring the unions.
The two new Democrats, Kent Hirozawa and Nancy Schiffer, replace Sharon Block and Richard Griffin Jr., whose recess appointments by Mr. Obama were challenged by Republicans over the meaning of “recess,” as used over the years by both Democratic and Republican presidents. Ms. Schiffer spent decades working for the AFL-CIO and the UAW, and Mr. Hirozawa was formerly chief counsel for Mr. Pearce, the holdover chairman. Despite pledges to remain neutral in labor-management disputes — simply calling “balls and strikes,” in Chief Justice John Roberts‘ formulation — Democrats and Republicans both suspect the other side’s impartiality.
The validity of scores of NLRB‘ rulings while the constitutionality of the Block and Griffin appointments were under a legal cloud remains in legal limbo. In January, a panel of the U.S. Court of Appeals for the D.C. Circuit ruled the appointments unconstitutional, and the Supreme Court will take up the case in its 2013-14 term.
The new Obama appointees could simply revisit those issues, and the Democrats could use their 3 to 2 majority to reaffirm those disputed decisions, this time enacting them without legal question, rendering that issue moot as well. According to the Labor Relations Today blog, board actions likely to be revisited include so-called “quickie” union-election procedures “to facilitate union organizing by drastically shortening the timeframe for union-representation elections,” significantly limiting “pre-election adjudication and appeal of relevant legal issues.” Also likely to be reconsidered are so-called union “micro-units.” Following a 2011 decision that “reversed decades of board precedent and endorsed sub-unit organizing,” the blog reports, the NLRB is likely “to continue to define the scope of extent to which the traditional ‘community of interest’ test will be minimized as unions seek to organize smaller and/or cobbled-together groups of employees within workplaces.”
Both are regarded by the unions as essential to reversing decades of declining fortunes, during which union membership in private-sector companies has fallen to just 7 million members, or 6.6 percent of the private-sector workforce, according to 2012 Labor Department figures.
Liberal history revisionists argue that the stalemate in board membership began with Mr. Obama’s presidency, the result of Republican determination in the Senate to thwart the president’s desire to appoint a Democratic majority on the board. But this is actually the first time in a decade that the board has had a full complement of five members. The dispute dates from 2003, when Democrats in the Senate obstructed President George W. Bush’s business-friendly panelists.
Conservatives blame Sen. John McCain for brokering what they regard as a one-sided deal, a vote on stalled nominees to the NLRB and other agencies in exchange for a decision by Senate Majority Leader Harry Reid to abandon the so-called “nuclear option” change in Senate filibuster rules. Conservatives call this no bargain at all.
The Washington Times