The National Labor Relations Board’s concept of impartiality

No such concern was demonstrated by President Obama’s last-minute nominees to the NLRB, Nancy Schiffer and Kent Hirozawa, who were confirmed Tuesday.  Although both are long-time union lawyers and committed members of the “labor movement,” they told the Senate Committee on Health, Education, Labor and Pensions unequivocally and without hesitation that they could “fairly and impartially” decide issues brought to the board for resolution.   

George Meany, former president of the AFL-CIO, would have been incredulous.  Meany believed that “no one should be appointed to the Board from the ranks of labor or management, and that includes union lawyers and employer lawyers.”  The AFL-CIO expressed the same belief in a resolution passed when an employer lawyer was being considered: “It would be a considerable accomplishment for men whose pasts were spent and whose futures lie with management to achieve even-handed justice . . . They don’t.”

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One can debate the latter point, but there is no debate that Big Labor has come full circle—now insisting that Democrat board members be selected to be partisan, to favor union outcomes.  So how is it that Schiffer and Hirozawa, approved by Big Labor, were able to pledge to the Senate that they will be “fair and impartial”?  While I do not doubt their sincerity, those words have lost their meaning in this context.   

It is dogma among lawyer-members of the labor movement that favoring a union outcome is not partial. They believe the act (the National Labor Relations Act of 1935, which established the NLRB) commands it, even though the Supreme Court has held that the act is “wholly neutral on the question of unionization.” They rely on the act’s preamble and persist in the belief—vigorously expressed to Congress in 2004 by Schiffer—that the “primary goal” of the act is “explicitly to encourage” unionization, ignoring the court’s instruction.  Coupled with the movement’s view that the act should be interpreted “dynamically in order to avoid a sterile debate over words,” (former NLRB chairman, Wilma Liebman, FIU College of Law, March, 27, 2010), this belief gives union-side board members license to disregard the plain language of the statute and interpret it solely to make union organizing easier.   

Finally, what is “fair and impartial” in a particular case is determined by the facts, interpreted through the prism of one’s experiences.  Lawyer members of the labor movement are inclined to allow their experiences, their perception of reality—however  misguided—to fill holes in the record and to resolve ambiguities.  For Schiffer, the workplace is an “inherently coercive environment,” ruled by employers who “always” thwart the efforts of their employees for a union by “intimidation, misrepresentation and abuse.”  This is Schiffer’s reality, the context in which she will determine whether an employer is guilty of an unfair labor practice.    

These statements, and many others like them, cannot be dismissed as mere advocacy.  They are contained in statements submitted to Congressional committees, and Ms. Schiffer reaches out and relies on fabulously flawed statistics for their accuracy.  She testified, for example, that the “the number of instances of illegal discipline or discharge of workers for union activity documented by the NLRB skyrocketed from 1,000 per year in the early 1950’s to 15,000—25,000 annually in recent years.”   But NLRB statistics show a 50 percent drop in unfair labor practice charges of all types between 1980 and today, with “for merit” charges at roughly just over 8,000 per year.     

So what is in store for American business and their employees? The new majority will consider a variety of partisan pro-union measures: banning or restricting mandatory employer-employee meetings discussing unionization; granting union agent access to an employer’s premises prior to an election; allowing employees’ use of their employer’s e-mail system for union organizing activity; further shortening the time for a Board election; off-site, perhaps electronic, voting; and the list goes on.  And some changes will be adopted by rule to make them less mutable to change by a future board.

In voting against Schiffer and Hirozawa, ranking committee member Sen. Lamar Alexander (R-Tenn.) said that he was not persuaded that the nominees would be able “to transfer the positions of advocacy to position of judge” and be impartial. Alexander is not alone.

Schaumber, a Republican, was chairman of the National Labor Relations Board from March 2008 to January 2009.