It’s tempting to complain about this, or to point at Becker’s close ties to organized labor and say that Obama has departed from a standard practice of nominating people without conflicts of interest. Right-leaning commentaries on the current board often mention how it’s “stacked” with Democratic union stooges. What they do not mention is that it’s actually common for presidents to make NLRB appointments while Congress is in recess, and for nominees to have a clear track record of taking a specific side in labor confrontations.
Just look at Obama’s predecessor. Bush recess-appointed seven of his nine NLRB selections. His picks included Peter Kirsanow, a friend of National Review
whose law practice “focused on representing management in employment-related litigation,” according to an official government biography; Peter J. Hurtgen, who “represented employers in labor and employment matters,” according to Politico
; Robert J. Battista, who also represented management in labor disputes; and Michael J. Bartlett, who was director of labor-law policy at the anti-union Chamber of Commerce. And while Bush’s NLRB never did anything so drastic as dictate to a company where it could add production capacity or introduce radical changes in the way union elections are handled, it did overturn various precedents, almost always pushing the law in a pro-management direction.
So, while Congress rarely changes the NLRA — the last significant update was in 1974, when coverage was extended to health-care workers — the law means something different every time a new party controls the White House. As Obama took office, the legal-news site Law.com ran a top-ten list of Bush-era precedents that an Obama-appointed NLRB would probably overturn. This makes a mockery of the rule of law.
The NLRA is a bad policy. It deserves to be repealed entirely so that businesses and workers can work out contracts as they see fit, using unions as intermediaries if they so choose. But failing that, Congress needs to restructure the law so that elected officials, not a politically appointed and ever-changing board, make the important decisions about labor law — decisions that include how elections are run, what constitutes an “unfair labor practice,” and whether companies may build new facilities wherever they want to.
— Robert VerBruggen is an associate editor of National Review. This article first appeared in the August 1, 2011, issue of National Review.