Coming back to the NLRB’s core mission

The son of an Iowa coal miner is pleased that the United States, as he sees it, has moved closer now to enforcing a piece of the law that has too often been ignored in recent American history. That law reads: “It is the policy of the United States government to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association.”

The coal miner’s son, now the chair of the Senate’s powerful Health Education and Labor Committee, is celebrating that body’s approval last week of all of President Obama’s three nominees to fill three vacant seats on the five-member National Labor Relations Board which, when it was run by a Bush-named GOP majority, says Sen. Tom Harkin, D- Iowa, pulled away from its mission of enforcing the workers’ rights provisions of U.S. labor law.

“In today’s challenging economy,” said Harkins, “when workers are vulnerable and worried about the future, it is critically important to have strong leadership at the board to guide the agency in its core mission.”

Harkin noted that in recent years the Board did little to inform workers of their rights and failed to punish many employers who repeatedly violated labor law.
“I am also concerned about the excessive delays – justice delayed is justice denied, and all too often these delays mean there is no real penalty for violating workers’ rights. It will be a serious challenge to restore the core mission of the NLRB, but I think the nominees we approved are up to the task,” said Harkin.

Under the law the president appoints three of the five members from his party and the remaining two from the other political party. For almost two years now the board has operated with only two members, one Republican and one Democrat. They have only decided cases on which they could both agree using a phantom third member to form a quorum of three. All of those decisions have been put in legal limbo by conservative appeals judges ruling in favor of employers resisting pro-worker decisions.

The full Senate must approve the president’s nominees for the three vacancies. A pro-worker majority is important to the labor movement because the NLRB often decides whom unions can represent and even who is the actual victor in a representation election.
Two of Obama’s nominees for the three vacancies, pro-labor Democratic lawyer Mark Pearce of New York and Republican Brian Hayes of Massachusetts, were unanimously approved by the Senate Labor Committee on Oct. 21.

The third, Harold Becker of Illinois who serves as counsel for several unions, drew sharp opposition from Republicans on the panel. He was approved, however, 15-8.
Senators who oppose a nominee do not have to give specific reasons. The committee’s top rRepublican, Mike Enzi of Wyoming, would only say he had “some questions about Becker’s previous writings.”

It is believed that Enzi took issue with several scholarly articles written by Becker when he was in private practice. In those articles Becker advocates for taking the strongest possible pro-worker position when interpreting various aspects of labor law.
Approval of Becker, Pearce and Hayes by the full Senate, which is not scheduled yet, is important for legal reasons because a federal court ruling earlier this year threw all the Board’s powers into question.

The problem arose because, since Dec., 2007, the NLRB has operated with only two of its required five members, Democrat Wilma Liebman and rRepublican Peter Schaumber. Obama has appointed Liebman the board’s chair.

The two, relying on a legal interpretation from the Bush administration, have decided almost 400 cases by 2-0 votes, with a third “phantom” member, who would always presumably vote “no,” providing a “quorum” and letting the Board issue final rulings. Many federal appeals courts agreed with that interpretation.

The highest federal appeals court in D.C., however, overturned the arrangement earlier this year. The court said the board needed a real quorum of three people to decide anything. It also ruled that all the 2-0 cases might have to be decided all over again.
At the request of Liebman and Schaumber the Obama administration has appealed the “real quorum” decision to the U.S. Supreme Court.

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