Restoring Fairness to Labor Relations; the NLRB's Curious Definition of What's Fair to Employers

Article excerpt


Wilma Liebman, a past chairman of the National Labor Relations Board, recently urged the Senate to approve President Obama's five nominees to the NLRB and end the partisan warfare over appointments to the board. She contends that giving the board a full complement of members serves the public interest in good government and the rule of law. It is, if only numbers count.

What's happening is much more than partisan bickering. It is generated by a clash at the NLRB of two opposing views of the National Labor Relations Act, and it goes to the heart of our commitment to the rule of law and our willingness to insist that high-ranking political appointees adhere to it.

Republican and Democrat members hold opposing views about the act, which has polarized recent boards, but particularly the Obama board. Under the Republicans' view, the board is required to be neutral on the question of unionization. Under the Democrats' view, the board is charged with favoring the interests of one side - unions - to promote collective bargaining.

The former view has the support of the Supreme Court, which has ruled that the act is wholly neutral on the question of unionization. The latter view has the support of organized labor, which is alarmed by the loss of union density in the private sector and looks back nostalgically to the 1930s and '40s when the Wagner Act reigned supreme; unions had only rights, not obligations, and workers and their employers were restricted in their ability to oppose unionization.

The Wagner Act was not Congress' last word on the subject, though. In 1947, Congress fundamentally changed the law with the Taft-Hartley Act. Taft-Hartley firmly establishing the principle of workplace democracy as the cornerstone of U.S. labor law. Under the Wagner Act, only an employer could commit an unfair labor practice, but Taft-Hartley added union unfair labor practices to the statutory scheme. Taft-Hartley gave workers the right to refrain from union-organizing activity and recognized an employer's right to non-coercively express its opposition to the union.

The former chairman and union-side members of the board share organized labor's view of the law. They use the act's objective to encourage the practice and procedure of collective bargaining to trump specific provisions of the amended law, even though the Supreme Court has already weighed in on the other side of this issue.

Examples of union partisanship abound: The Obama board stripped workers of their right to challenge, through a secret ballot, the voluntary recognition of a union based on an unreliable card check; promulgated a rule to drastically shorten the time for a board election, which will limit the ability of employers' to express their views on unionization; and required the posting of a partisan, one-sided notice of employee rights. …