Belabored

It wasn't the Employee Free Choice Act (EFCA), which would have enabled workers to join unions without fear of losing their jobs -- a bill that died in that graveyard of progressive legislation, the Senate, back in 2010. Rather, it was the more incremental and procedural group of reforms that the National Labor Relations Board adopted in the past couple of weeks that will provide some modest help to workers seeking to form or keep a union in the work place.

The board has taken intense fire of late from both Republican politicos and businessmen. Three months ago, the attacks went into overdrive when NLRB General Counsel Lafe Solomon ruled that Boeing, by locating a new factory in South Carolina after its executives said they were doing so to avoid strikes such as those that had occurred in their Washington-state plants, had violated the section of the National Labor Relations Act that bans plant relocation on the basis of strike avoidance. In other words, Boeing, by shooting its mouth off, had violated a law that thousands of other companies had avoided simply by staying close-mouthed about the reasons for their move.

Solomon's ruling, not to mention his suggestion that Boeing might be legally obliged to relocate back to Washington, was taken without the knowledge or consent of the board, which is currently composed of three Democratic appointees and one Republican. (It was Solomon's job to make the initial ruling; if the case reaches the board, it will likely not be for years.) Nonetheless, Republicans, most prominently California Congressman Daryl Issa, alleged, undeterred by the absolute absence of substantiating evidence, that the White House had been pulling the strings to prompt Solomon's ruling. The claim is ludicrous -- the ruling is clearly a political problem for the White House, and the union in question, the Machinists, has been the union that's been most hostile to the administration. But Issa has subpoenaed the nonexistent communications between Solomon and the White House on the case, and Republicans clearly believe they have an issue that shows the board in a bad light.

In this climate, any board rulings that restore to workers a modicum of the rights they've lost as a result of previous board rulings (when the board was dominated by Bush appointees) are attacked by the Republicans as evidence of bias. But the board hasn't been deterred.

In three decisions announced on August 30, the board, by 3-to-1 votes with the sole Republican member dissenting, restored its historic standards for challenging a union's standing in the work place and extended to health-care facilities the rule that prevails in other industries for what constitutes a distinct group of workers that a union may seek to organize. In the Lamons Gasket decision, the board ruled that when an employer voluntarily recognizes a union, a "reasonable period" has to elapse to give the new collective-bargaining relationship a chance to succeed. The decision overturns the 2007 ruling of the George W. Bush-appointed majority in the Dana case, which compelled an immediate decertification vote if just 30 percent of the affected workers petitioned for it. Dana had overturned a board ruling that had prevailed for 40 years; last week's decision restores the older standard. The current board had commissioned a study of Dana's effects, and found, despite the fact that unions increasingly rely on the "card check" recognition method that would be subject to such a challenge, that such challenge elections hardly ever happen.

In a second case overturning a Bush board decision, the board ruled that when a unionized company changes ownership, a period of time must be allowed for the new owner and the union to see if they come to terms. "The Supreme Court recognized more than half-a-century ago that a bargaining relationship, once rightfully established, must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed," the Democratic members of the board wrote.

In its third ruling, this in the Specialty Healthcare case, the board applied its "community of interest" standard to the health-care industry. In this case, a union sought to hold an election among the certified nursing assistants at a nursing home, while management protested that the electorate should include other employees in different jobs. The board ruled that the election should go forward among the nursing assistants.

These rulings were handed down during NLRB Chair Wilma Liebman's last week on the board, concluding a tenure that had lasted 14 years. The board, which is supposed to have five members, is now down to three -- Republican Brian Hayes and Democrats Mark Pearce and Craig Becker, whose recess appointment by Obama expires at the end of the year. It's not the first time the board has been smaller than its allotted size: During the closing years of Bush's presidency, it was down to two members. Given the growth of rabid anti-unionism in the corporate community and the Republican Party, confirmations of presidential appointees to the board have become almost impossible, which is why Becker's was a recess appointment, as were most of the Bush appointments as well.

Last year, however, the Supreme Court ruled that the decisions handed down by the two-member board -- Liebman and Republican Peter Schaumber -- were invalid as the board lacked a quorum. If Obama is unable or disinclined to make a recess appointment once Becker's term is up, the board will have no power to rule on anything until the next presidential term begins in 2013 -- assuming the Senate will then confirm at least some of the president's (whoever he be) appointees.

In anticipation of the coming vacuum, the board has set in motion a process that will enable it to rule before year's end on a proposal to expedite union ratification elections. Under the current rules, employers can impose lengthy delays on the vote, affording themselves more time to threaten and dissuade workers, or simply to delay the vote so long that workers succumb to frustration and the vote never is taken. The proposal has predictably drawn a torrent of Republican and business opposition, which is ironic, inasmuch as the two groups opposed the card-check provision in EFCA on the grounds that workers are entitled to regular secret-ballot elections. "If you want secret-ballot elections," one legislator told me, "you'd think you'd support making the process work."

Liebman's decision to leave the board, which predates the current round of controversy, comes, as she well knows, at a difficult time for the institution. For all the attacks on labor and the board, though, she believes that Americans still support the right of workers to form unions (a belief that is likely to be strengthened by November's initiative contest in Ohio, in which polls show voters strongly oppose a new law restricting that right). "The basic values that animate this statute [the National Labor Relations Act] won't go away," she told me several weeks ago. "Most people recognize the need for these basic rights -- even Republicans still defend the basic rights. The board will survive this crisis."

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