Obama’s payback to labor thwarted by DC court

Dan Bowling Senior Lecturing Fellow, Duke Law School
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If President Obama wants to remake our nation’s labor laws, he will have to do it the old-fashioned way: through the legislative branch. On Friday, a three-judge panel of the District of Columbia Circuit Court of Appeals struck down as unconstitutional several recess appointments made by the president over the past year, including those of three members of the National Labor Relations Board (NLRB). It leaves the NLRB with only one member — not enough to function under the law — and throws into question hundreds of decisions issued over the past year.

The White House claimed the court’s action was “historical overreach.” The overreach, according to the court, however, was with the White House. Although presidents have appointed NLRB members who reflect their political views in the past, they have usually been submitted for Senate confirmation — not appointed during a questionable “recess” and set loose to cause havoc.

It appears the administration is digging in its heels. On Jan. 25, NLRB member Mark Pearce — the constitutionally appointed one — issued a statement vowing that the NLRB would continue to operate and decide cases. Which will do nothing but add more uncertainty for employers and unions with matters before the NLRB, inasmuch as decisions in those matters might very well be invalidated.

It is obvious what the president is trying to do. As we have noted on these pages before, President Obama and other Democrats have received billions of dollars in union support over the past few years, and as payback labor has been demanding passage of legislation making it easier for unions to organize. But why bother with the heavy lifting of finding legislative solutions? Why not change the law by administrative fiat, and what better way to do that than by stacking the deck at the NLRB with recess appointments?

Until the D.C. Circuit Court of Appeal’s scathing rebuke, the administration’s strategy showed signs of working. The NLRB under President Obama has been aggressively anti-management. In addition to overreaches like trying to tell Boeing where it can build planes and writing Facebook policies for private companies, the NLRB has signaled it will not rest advancing labor’s agenda. It even has shown an unprecedented willingness to use its rule-making authority to change how unions are selected. Although the National Labor Relations Act grants the NLRB the authority to engage in substantive rule-making, virtually every previous board has focused instead on its primary role of adjudicating disputes. Not this one.

The NLRB was created by the Wagner Act in 1935. The Wagner Act, as amended by the Taft-Hartley Act in 1947, encourages private resolution of labor disputes, with the NLRB serving as a quasi-judicial referee. It has five members appointed by the president subject to Senate confirmation.

There is nothing unusual about a president appointing NLRB members who share his political views. Although the legislative history of the Wagner Act shows the NLRB was designed to be non-political, over the past few decades the five members of the NLRB have usually been split along party lines, with three members from the president’s party and two from the opposition’s. Regardless, its effectiveness and credibility has always depended upon the non-ideological resolution of the matters that come before it.

This doesn’t stop pro-union academics from advising otherwise these days. Typical of these is renowned labor scholar Charles Morris. Frustrated by the lack of congressional action outlawing secret ballot union elections, which are thought to favor management, he argued in a law review article earlier this year that it is up to the NLRB to advance labor’s agenda: “a legislative fix in today’s political climate or the foreseeable future is futile. … That does not mean, however, that … [organizing goals] … are unobtainable. With proper Board membership and motivation [italics added], some if not all of those objectives can be achieved.”

So, Mr. President, if you can’t convince Congress that labor law needs changing, or don’t want to spend any political capital in the effort, just stack the NLRB. Fair enough: If the president wants a pro-labor NLRB, he can have it, but he has to appoint mainstream candidates from both parties who can pass muster in the Senate.

Here is what he should do next, according to prominent labor attorney John Wymer: “The next step will be for [President Obama] to propose a ‘package’ of appointees — comprised of two Democrats and two Republicans to join Chairman Pearce — for approval by the Senate. That would bring the NLRB to full strength: three Democrats and two Republicans.”

In other words, play the game as the Constitution requires, and how it has been played for decades. Even if it slows the rush to transform the nation’s labor laws into a collectivist’s dream. Will it happen?

What will happen, says Wymer, “is anyone’s guess.”

Dan Bowling is Senior Lecturing Fellow at Duke Law School, a lawyer, and the CEO of a workplace consulting firm. Previously, he was head of global human resources for Coca-Cola Enterprises.