Created nearly 80 years ago to supervise union elections and
protect workers' rights to organize, the NLRB is a battleground for
pro-labor Democrats and pro-management Republicans.
Deep disagreement between the two sides over the NLRB's role — and
over organized labor itself — makes disputes involving the board
uncommonly bitter and subjects its agenda to constant reshaping,
depending on which party controls the White House.
"It's no accident ... that this major constitutional showdown is
occurring over appointments to the board," said AFL-CIO General
Counsel Craig Becker, a former board member.
Monday's case began as a labor dispute. The NLRB found in February
2012 that Noel Canning, a Pepsi bottler in Yakima, Washington, had
reneged on a verbal contract during union negotiations. The company
appealed to the courts, attracting the support of the U.S. Chamber
of Commerce, conservative interest groups and Republican leaders in
Congress. The case evolved into a constitutional challenge to the
president's power to make appointments to key posts without Senate
At issue are "recess appointments" made in January 2012 by
Democratic President Barack Obama to the NLRB. Two of these
appointees presided over the board's Noel Canning deliberations,
which the company and its supporters are contending was invalid.
An NLRB spokesman declined to discuss the case.
Since its Great Depression origins, discord over the NLRB and the
labor law it enforces have led to policy flip-flops and vacillating
oversight as political power shifts in Washington.
One measure of this is agency data on how often the board seeks
court injunctions. In cases where it suspects a labor law violation,
the five-member NLRB board can authorize seeking a court order, or
injunction, telling an employer to halt a questionable practice
while a case moves forward.
Agency data for 1976-2011 show that when Democrats are in the White
House, injunction authorizations rise, but when Republicans take
over, authorizations decline, reflecting deep differences between
the two parties about to what extent the board should intervene in
Another indicator is sometimes startling flip-flops on labor law
issues, experts said. Unlike courts, the NLRB is not bound by its
prior case precedent and can alter past positions.
For instance, the board has reversed course on whether graduate
students at private universities can join labor unions. In 2000,
under Democratic President Bill Clinton, the NLRB said New York
University graduate students could unionize.
In 2004, under Republican President George W. Bush, the board
reversed that decision. Then under Obama, it said in 2012 that it
would reconsider the Bush-era determination, though the union
withdrew its case in a deal with the university.
"It's not good for the constituency the NLRB serves — whether it's
employees, employers or unions — to have rules always in flux," said
Marshall Babson, an NLRB member during the Republican administration
of President Ronald Reagan.
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"G-- D--- LABOR BOARD"
"This agency has been controversial from Day One," said former NLRB
Chair Wilma Liebman in an interview.
An October 1938 article in Fortune, a business magazine, was
headlined, "The G-- D--- Labor Board," and called the law it was
supposed to enforce a "patently one-sided" pro-union statute that
was the most "bitterly contested" of all Democratic President
Franklin Roosevelt's New Deal legislation.
A Republican-backed effort led to management-friendly amendments to
the law in 1947. Liebman said modern-day board members still debate
whether the agency's primary mission is enforcing the original
statute or the amendments.
"That's one of the things that has created the flip flopping, the
dissenting opinions, so much controversy," Liebman said. "It's a
statute that was never fully accepted."
The five-member board, picked by the president and subject to U.S.
Senate confirmation, decides hundreds of cases each year. Three
members are needed to decide a case. Members' five-year terms are
staggered, with one expiring each year. Some board vacancies have
gone unfilled in recent years.
Before Obama installed the recess appointees contested by Noel
Canning, the board had only two members and could not take official
action. If the soda bottler prevails, the practical fallout for the
NLRB will be limited. The Senate cut a deal in July that led to the
confirmation of five NLRB members, marking the first time in a
decade the board had all its seats filled.
If Noel Canning wins, those members will likely have to re-decide
more than 100 cases pending before U.S. appeals courts that
challenge decisions made in part by recess appointees, Liebman said.
But the larger question is whether the case could hobble efforts by
Obama — and future presidents — to overcome political gridlock and
fill key posts across the government.
One NLRB member's term expires in December. So the turbulent
agency's next vacancy — and another potential confirmation fight — is less than a year away.
(Editing by Kevin Drawbaugh and Ken Wills)
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