GOP's doublespeak on the NLRB

First, let’s consider the legitimacy of the recess appointments. On January 4th, President Obama made three appointments, two Democrats and one Republican, to ensure the board had a quorum and was able to continue functioning. The reason he had to make recess appointments – despite the GOP’s efforts to block him through gimmicky pro-forma Senate sessions, in which no business was conducted – was that obstructionist Hill Republicans had vowed to oppose his nominees in order to incapacitate the board.

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The Justice Department’s Office of Legal Counsel asserted that the White House had the authority to act, and the Bush Justice Department had previously reached a similar conclusion. The president had little alternative, moreover, because, according to one constitutional expert, “recess appointments appear to be the only feasible means by which these positions will be filled in the foreseeable future.” Whatever uncertainty has been caused by legal challenges to the president’s constitutional authority – anti-union groups are challenging the appointments in federal court -- is more than outweighed by the uncertainty that would have been caused by leaving the positions unfilled.

Second, there’s the background of the appointees themselves. Contrary to GOP claims that Obama’s appointments demonstrate a “total disregard for
normal policies,” the president has followed past practice by ensuring the board has 3 members from the administration’s party and 2 from the opposition. Are his Democratic nominees mostly from a “pro-union” background? Of course, but “bias” on one side or the other has been the norm for NLRB nominees since President Eisenhower first politicized the appointments process in the 1950s. Rep. Trey Gowdy (R-SC) believes that the current NLRB has “lost all pretense of objectivity,” but past Republican boards have voted overwhelmingly with the “employer side” on cases that come before them.

Would we be better served by if the board were composed of neutral experts, as happens in the UK and elsewhere? Perhaps, but the past five Republican administrations have not followed that practice, so it’s unclear why GOP leaders expect it from this president.

Hill Republicans have also ignored last week’s report by the NLRB’s Inspector General. He found that Republican board member Brian Hayes held
employment discussions with a management law firm that is suing to block the board’s new election rule at the very time Hayes had threatened to resign to prevent a vote on the rule. The Inspector General also concluded that Hayes sent a letter to members of Congress complaining of irregularities in the rule-making process – which was cited repeatedly by Hill Republican -- that contained false statements and misrepresentations. GOP House leaders have not yet apologized for attacking the NLRB based on incorrect and misleading information.

Third, there’s the board’s “activist agenda” in the area of union certification elections and employer notice posting. Hill Republicans have cried foul over NLRB chairman Mark Pearce's plan continue to modernize and improve union election procedures by cutting down on unnecessary delay. Like the union avoidance experts who counsel dilatory tactics to undermine employee choice, they recognize that lengthy anti-union campaigns are key to the stranglehold that employers exercise over the current system.

Supported by House Republicans, the Chamber of Commerce and others have filed suit to block the rule that requires employers to post notices informing employees of their rights under federal labor law. The Chamber’s argument is revealing: the “forced speech” rule violates employer free speech because employers disagree with the content of the notice. But what they are required to post is not dangerous propaganda but the law of the land.

Last week the Bureau of National Affairs released union membership figures for 2011. Collective bargaining coverage fell again to 13%, which contrasts with an average in most northern European nations of about 80%. The US has tens of millions of workers who want union membership but, due to weak legal protection and strong employer opposition, can’t get it. It also has by far the largest “representation gap” – the gap between those who say they want union membership and those who actually have it – in the developed world.

If the NLRB is truly in the pocket of “Big Labor,” as the GOP and far right groups allege, unions should demand a refund, because the board is clearly ineffective at counteracting aggressive and illegal anti-unionism.

If Hill Republicans are in the pocket of extreme anti-union organizations, on the other hand, the kind of hypocrisy and doublespeak we will likely hear from GOP leaders at Tuesday’s hearing is providing excellent value for money.

Logan is professor and director of labor and employment studies at San Francisco State University.