The NLRB eliminated the practice by denying that it ever existed.
Unprincipled End To A Principled Practice
Since 1947, when the U.S. Congress made it a five-member Board, the NLRB has rarely issued a major decision (a decision reversing Board precedent or establishing major new precedent) without members of both political parties participating. By tradition, the party holding the White House has three members; nevertheless, the issuance of major decisions required a Board of at least four or five members, referred to in-house as a “full Board.” This assured participation by a member of the other party or both major parties.
This practice became an institutional norm dictated by prudence and honored by Boards controlled by Democrats and Republicans alike, that is until the Obama Labor Board.
For the Obama Labor Board – former Chairman Wilma Liebman, former Member Craig Becker and current Chairman Mark Pearce – requiring the participation of at least one Republican member threatened their goal of radically transforming American labor law. Republican members could issue dissents to the majority’s major decisions highlighting the radical changes it was making in American labor law, fueling public debate and inviting Congressional action.
Consequently, Liebman and current Board Chairman Pearce eliminated the practice by issuing a decision in which they denied that the practice ever existed.
This rabidly unprincipled decision (Hacienda Resort Hotel & Casino) would subsequently present a problem for Liebman when it was disclosed in a Congressional hearing that only four years earlier, after she served on the NLRB nearly ten years, she publicly acknowledged the existence of the practice of which she was now denying.
In a 2007 case known as Schreiber Foods, Liebman wrote that a Board, of which she was a member at the time, could not reconsider a prior NLRB decision because the Board had only three members, and “the Board’s … reluctance to overrule precedent when at less than full strength (five members)” was “well-known.” Teamsters Local 75 (Schreiber Foods), 349 NLRB 77, 97 (2007).
When the conflict in Liebman’s public pronouncements was brought to the attention of a Congressional subcommittee, Liebman repeated what she and Pearce said in Hacienda, and which they knew to be not factual, that the “Board has repeatedly overruled precedent when it consisted of only three members.” (Letter to Congressman Phil Roe, Chairman, Subcommittee on Health, Education Labor and Pensions, Committee on Education and the Workforce, February 25, 2011).
In fact, a three-member NLRB has reversed Board precedent in only a handful of cases, and that occurred principally during the first few months of a relatively new Board in 1985, twenty-six years earlier.
Then, in trying to explain her statement in Schreiber Foods, Liebman painfully tried to extricate herself and had the daring to tell Congressman Roe: “While my statement in Schreiber arguably could have been more precise, I was referring to the Board’s tradition that three votes are required to overrule precedent, and not asserting that a Board of fewer than five members would never do so.”
The Stakes Are High
The scuttling of the NLRB’s practice requiring the participation of four or five members in any major Board decision was in anticipation of a Democrat-only Board. This will occur in December when Board member Brian Hayes’ term ends and it is likely to continue for some time should there be a second Obama Administration.
This will give the highly-partisan Board members the opportunity to issue decisions without opposition on some significant pending issues such as the following:
1. Will secret ballots continue to be cast in person or can they be cast electronically from off-site?
2. Will an employer be able to continue to restrict the use of its e-mail system or will he/she be required to make it available for union-organizing activity?
3. Will employers be required to give off-duty employees access to the interior of their premises for union-organizing activity?
4. Will employers be required to give union organizers access to their premises after a petition for an election is filed?
5. Will employers be required to open their premises to union solicitations if they permit charitable solicitations such as the sale of Girl Scout cookies?
6. Will students seeking a graduate degree have the right to organize and form or join a union?
7. Will temporary workers assigned by a temporary staffing agency to an employer have the right to organize with the employer’s full-time employees?
8. Will charge nurses be used by unions to organize employees who work under their direction?
Dictating Changes In The Law
Stifling dissent undermines the mission of the NLRB and is not the American way. Our system depends on an open exchange of ideas from all sides of the political spectrum. Unfortunately, this does not appear to be the process that will be followed by the Obama Labor Boards.