The Second Obama Board Is Likely To Be Carbon Copy Of The First

Fred Wszolek

5/3/2012 12:01:00 AM - Fred Wszolek

As of yet, President Obama’s non-recess appointees to the National Labor Relations Board (NLRB) have not participated in issuing any major decisions. Recently, however, they participated in a cluster of decisions that suggest the new Board majority is apt to mimic the approach of the controversial Board majority that preceded them – they will aggressively pursue the interests of Big Labor in an effort to roll back the clock on the decline of union membership in the private sector.

A few weeks ago, Sharon Block and Richard Griffin participated in a decision noteworthy for its bigheadedness. Along with Chairman Mark Pearce, Block and Griffin “declined to determine” the constitutionality of President Obama’s non-recess appointments to the Board. Then, after restraining themselves from deciding an issue over which they have absolutely no jurisdiction, they declared that their non-recess appointments (along with that of Terence Flynn) were nevertheless entitled to a presumption of regularity. Many things can be said about the President’s unprecedented non-recess appointments when the U.S. Senate was still in session, but few would suggest a presumption of regularity should attach to them. Since the finding was entirely unnecessary and made by non-recess appointees who should have recused themselves from making it, the finding demonstrates a loose appreciation for the limits of their office, which does not bode well if long-standing principles of Board law stand in the way of a partisan agenda.

The first Obama Board’s controversial “ambush election” rule severely limits the amount of time employers, particularly small employers, will have to secure legal counsel and express their views on unionization to their employees. Now, just recently, Board Member Sharon Block proposed limiting what employers may say in the little time they have left to say it.

In a concurring opinion, Block asked that the NLRB “re-examine” 30-year old Board law that upheld an employer’s right to tell employees that when they select a union the relationship that existed between the employees and the employer “will not be as before.” According to Block, that principle has been applied too broadly. She proposes carefully parsing the language an employer can use during a union organizing campaign, while she leaves untouched a unions ability to make false and misleading campaign statements.

In a case known as Specialty Healthcare, the prior Obama Board majority put Big Labor in charge of determining the size and scope of a collective bargaining unit. The NLRB essentially held that any unit of employees that a union petitions to represent will be considered an appropriate bargaining unit unless the employer can show an overwhelming necessity for a larger unit. The Board’s decision clearly conflicts with the statutory prohibition against making unit determinations primarily based on a union’s extent of organizing.

Disregard for that statutory prohibition was evident again in a recent vote cast by Member Richard Griffin. He voted not to review the appropriateness of the union’s petitioned-for unit of employees despite the fact that it included two separate divisions of the employer, ADT Security Services, Inc., that would soon operate in two separate companies.

President Obama eliminated Senate consideration of his nominees to the NLRB. We are beginning to understand why.