The NLRB Flexes Its Muscles

by Andrew Stiles
With all its seats finally filled, the board is rewarding Obama’s union supporters.

The National Labor Relations Board (NLRB) was given new life earlier this year when the Senate agreed to staff the agency fully for the first time since 2003. The pro-union board is now a beacon of hope for Big Labor, which has been having a rough year.

In July, the Senate agreed to replace two members of the board that President Obama had appointed in early 2012 — in violation of the Constitution, according to multiple court rulings — with a different set of pro-labor nominees, to the delight of the Daily Kos.

Senate majority leader Harry Reid (D., Nev.), under intense pressure from labor unions, had threatened to use the so-called “nuclear option” to eliminate the minority party’s ability to filibuster executive-branch nominees (a threat he ultimately made good on last month) and ram through the NLRB appointees.

One of Obama’s previous appointees, former union attorney Richard Griffin, was later confirmed as the board’s general counsel, a position that gives him considerable authority to pursue cases. AFL-CIO president Richard Trumka praised the decision, noting that “the NLRB is now running on all cylinders.”

Having stayed relatively quiet throughout the nominations controversy, the NLRB has assumed a more active role now that the threat of the Supreme Court’s potentially invalidating its decisions (due to the illegality of Obama’s previous appointments) has been removed.

Just last month, the board filed a number of unfair-labor-practices complaints against Walmart, concerning allegations that it unlawfully threatened and retaliated against employees for taking part in protests against the retail giant. Right-to-work activists noted with some suspicion that the AFL-CIO’s Trumka was one of the first to announce the NLRB’s actions, on a November 18 conference call with union-backed activist groups coordinating anti-Walmart protests over the Thanksgiving holiday, including some of the same groups responsible for the protests at the center of the NLRB complaints.

The board also ruled in favor of the United Food and Commercial Workers International Union’s (UFCW) controversial practice of paying Walmart employees — with gift cards — to take part in the protests, which the company decried as coercive behavior. The UFCW, an affiliate of the AFL-CIO, has devoted considerable resources to trying to unionize Walmart employees; its subsidiaries, such as OUR Walmart and Making Change at Walmart, have played a leading role in the protests.

John Raudabaugh, a labor-law professor at Ave Maria University who served on the NLRB from 1990 to 1993, says the board may be gearing up for some significant rules changes sought by labor unions, perhaps beginning with new regulations that would significantly streamline union-elections process. Critics argue that so-called “snap elections” for union representation could dramatically increase the number of unionized workers by giving employers less time to prepare and present an argument against unionization.

“I’m confident that will be forthcoming,” Raudabaugh tells National Review Online. In fact, the board already tried to implement the new rules in 2012, but was (at least temporarily) thwarted when a district-court judge ruled that the NLRB could not approve the rule with only two members.

The NLRB may also choose to revisit a controversial 2011 ruling concerning the ability of unions to organize into “micro units,” designed to allow small, distinct units of employees within a company to unionize, even if the remainder of the workforce doesn’t want to. Last year the board determined that “units” as distinct as the shoe salesmen on the second and fifth floors of a Bergdorf Goodman department store in New York City should be allowed to vote to unionize.

Raudabaugh says he expects to the board to continue its “nitpicking” review of employee handbooks and human-resource policies and push for new rules that will make it more difficult for employers to fire people, and says it could potentially move to overturn almost a half-century’s worth of precedent by eliminating an employer’s ability to halt the collection of union dues upon the expiration of a collective-bargaining agreement.

With union membership falling to a near-century low, as measured by its share of the national workforce (11.3 percent), and Big Labor unhappy about having to comply with the requirements of the health-care-reform law it strongly supported in 2010, unions are having a difficult year. But now at least they have the NLRB.

— Andrew Stiles is a political reporter for National Review Online.