So, employers are left walking a fine line. To keep workers from unionizing, they have to provide information about the harmful effects of unionization, which can include plant closings and lost jobs. But these statements cannot be perceived as threats, and they cannot sound overly heated, lest they give credibility to a discrimination claim. American companies whose workers are considering unionizing have to watch what they say.
One reason the NLRA has been so vulnerable to constitutional challenges is that it was intentionally written in vague language. As the Supreme Court once put it, Congress “did not undertake the impossible task of specifying in precise and unmistakable language each incident that would constitute an unfair labor practice.” Which is to say, it failed to offer companies a way to predict which of their actions would later be considered illegal.
Of course, when the legislative branch passes a law that fails to forbid clearly some things and allow others, the other branches don’t have a policy to enforce. So, Congress created the NLRB, a three-member panel (now five members plus a general counsel) that would act as all three branches at once, subject to review by federal courts.
When the law is unclear, the NLRB makes policies up as it goes along. See, for example, the new union-election rules: The NLRA doesn’t specify the amount of time an employer should have to prepare for an election, so the NLRB gets to decide, and to change its mind at will. One would be right to say that the proposed rule — which could result in preparation times as low as ten days, compared with today’s norm of around 40 — is a bad policy, and that it’s a change so dramatic that Congress should be involved. But in 1935, Congress chose to delegate election procedures to the NLRB, and until Congress decides to do its job, the NLRB can and will do whatever it pleases.
Since the Taft-Hartley Act, the NLRB’s executive aspect has been headed by its general counsel, who supervises NLRB investigators and acts as a prosecutor before the board. When the general counsel files a complaint, the NLRB goes into judicial mode, deciding whether the alleged incident violated the NLRA and establishing precedents that guide future decisions. Like most judicial bodies, the NLRB can be overruled on appeal — but the federal court system gives the board a fair amount of leeway, siding with it in about 85 percent of cases that are appealed.
We will see just how politicized the current NLRB is when it reviews the general counsel’s Boeing complaint. There are reasons for pessimism. The same person who nominated Solomon — President Obama — chose two of the board’s four current members, and a third, chairwoman Wilma Liebman, is also a Democrat. This partisan imbalance is a predictable consequence of the structure created by the NLRA.
Whereas judicial nominees serve for life, NLRB members are nominated to five-year terms, with one member’s term ending each year. No more than three members of the board may be from the president’s party — Obama’s pending nomination for the vacant seat, Terence Flynn, is by necessity a Republican — so each time the White House changes parties, the new president gets to flip the majority as soon as a member of the opposite party leaves. In theory, the Senate has to approve the nominees — but if the Senate doesn’t like his choices, the president may make his appointments while Congress is in recess.