Panel worries business

Business groups worry that a federal labor panel Democrats will soon control will adopt components of the controversial card-check bill stalled in Congress.

The National Labor Relations Board (NLRB), created in 1935, oversees union elections and adjudicates charges of unfair labor practices. The board has had only two members since January 2008 but would reach its full roster of five members if three nominees recently sent to the Senate by President Barack Obama win confirmation.

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Business advocates fear the NLRB, at its full capacity and run by Democrats for the first time in eight years, will vote against their interests in favor of unions. Of particular concern is that the board will try to implement parts, if not all, of the Employee Free Choice Act (EFCA), or card-check, which makes it easier for employees to organize.

“If they can’t get the Employee Free Choice Act passed, is this Plan B to have someone confirmed to the board who will take an aggressive stance with the law and try to implement it through the machinery of the board?” said Steven Law, general counsel and chief legal officer for the U.S. Chamber of Commerce.

The Chamber says a pro-union labor board could rule that existing labor law already allows workers to form a union by signing authorization cards, instead of by voting through a secret ballot. Enabling workers to organize in this way is a central goal of the card-check bill.

“It is an administrative agency with tremendous power,” Law said. “Anyone who can set the terms of those elections could potentially influence the outcome of those elections.”

The Chamber has poured millions of dollars into lobbying and advertising campaigns to block the card-check bill.

Labor leaders say business groups are being too theoretical. The NLRB’s authority is too limited to institute the provisions of the card-check bill in separate rulings, they say.

“As a practical matter, that would be difficult, if not impossible. That would require heavy changes to the statute and would come under serious, serious challenges,” said Michael Bearse, general counsel for the Laborers’ International Union of North America.

Instead, workers still need “legislative change” to protect their rights, as another union official put it.

“If we thought the board had that kind of power, we wouldn’t be doing the legislation,” said the union official. “What is apparent [is that there] are plenty of restrictions on the board and what kind of decisions they can make.”

But since Obama’s election last November, unions have been excited by the prospect of an NLRB run by Democrats.

From 2004 to 2007, Republicans held a majority on the board and reached several decisions counter to labor’s goals. Union leaders took to referring to the panel derisively as “the Bush board.”

A 2007 ruling, for example, gave more leeway to workers to decertify a newly recognized union at their workplace. In another controversial decision, the NLRB found that employers have property rights over the workplace’s e-mail system and employees could not use it for union campaigning.

A 2006 ruling, meanwhile, made it easier for employers to exclude their workers from union representation.

“In a nutshell, from our perspective, some of the board’s recent decisions have gotten away from the law,” Bearse said. “The scales have been titled one way too much and hopefully this will restore the balance between management and labor.”

A spokesman for Senate Health, Education, Labor and Pensions Committee Chairman Edward Kennedy (D-Mass.) said Democrats will push to quickly approve Obama’s nominees.

“Chairman Kennedy believes this is a well-qualified group of candidates and he hopes they will be confirmed as soon as possible,” said Anthony Coley, a Kennedy spokesman.

It is not clear whether the panel will hold confirmation hearings for any of the nominees.

The Chamber, though, wants at least one, for Craig Becker, an associate general counsel to both the Service Employees International Union and AFL-CIO. Becker, a former law professor at Georgetown, UCLA and the University of Chicago, was a member of Obama’s transition team.

In a letter to Kennedy and ranking committee member Sen. Mike Enzi (R-Wyo.) this past Monday, Bruce Josten, executive vice president of government affairs at the Chamber, said Becker has expressed “extreme views” about the National Labor Relations Act, the law that created the NLRB.

“What concerns us most of all is this view that employers should be stripped of any rights during an employee-organizing drive,” Law said, referring to a Minnesota Law Review article Becker wrote in 1993.

Becker and another nominee, Mark Pearce, a Buffalo, N.Y., labor lawyer, will likely win support from unions. Their experience in labor law “will make a huge difference,” said the union official.