Partisanship Perverts the NLRB

Partisanship Perverts the NLRB

January 17, 2013
Originally published in The Hill

When former SEIU Associate General Counsel Craig Becker left his post at the National Labor Relations Board in December 2011, he quickly segued into a cushy job as the AFL-CIO’s co-general counsel. Likewise, a year later, former management lawyer Brian Hayes exited the board after his two-year term and immediately landed a plum position representing management with one of the nation’s prominent labor law firms.

It wasn’t supposed to be like this. In 1935, Congress established the NLRB as a body made up solely of “three impartial Government members” to represent the public interest in labor disputes. An impartial NLRB was seen as crucial because of the contentious nature of labor relations in the United States.

But 78 years later, NLRB members on both sides of the labor-management debate use the post as a stepping-stone to bigger things. The damage, of course, is decisions made while on the board could well be altered by members’ desire to increase their marketability after their service.

The problem goes back to at least 1953, when President Eisenhower nominated management lawyer Guy Farmer and corporate industrial relations expert Albert Beeson to the board – the first NLRB members to come exclusively from the management side and adjudicate in their favor.

During a hearing before a Senate committee debating the Beeson nomination, James Carey, an official with the Congress of Industrial Organizations, said it would be impossible for him, a union leader for more than 20 years, to act impartially – and the same would go for a company lawyer. George Meany, president of the American Federation of Labor, said he worried this would give board members a “predisposition to the employer viewpoint.”

Today, the tables are turned, and it is Republicans who are complaining, and with good reason: All of the Obama administration appointees to the board came either from unions or union management (except for Sharon Block, who nevertheless sides with unions on every vote).

As a result, unsurprisingly, unions have benefited from a variety of Obama NLRB decisions. The board overturned longstanding legal precedent last month when it ruled a television station must continue to deduct union dues from the paychecks of workers who authorized such deductions even though the collective bargaining agreement those dues supported has expired. Hayes noted the union bias in the majority decision in his dissent:

"The bargaining process is better protected by preserving the settled rules with respect to both management rights and dues checkoff. It hardly advances collective bargaining to require that some portions of negotiated agreements — i.e., those favorable to the union — survive contract expiration, while others — those favorable to the employer — do not."

In January 2012, President Obama justified tossing aside the rule of law when he used recess appointments to fill vacancies on the board by saying, “the American people deserve to have qualified public servants fighting for them every day - whether it is to enforce new consumer protections or uphold the rights of working Americans.”

One of those “qualified public servants” was former union lawyer Richard Griffin. Maybe if President Obama wasn’t in such a rush to put Griffin on the board he would have discovered Griffin was named as a defendant in a federal racketeering case filed in October by several local union members, which accuses him of covering up the embezzlement of local union funds.

For decades, the NLRB has been transformed into the epitome of all that is wrong with Washington D.C.: A wasteful highly partisan agency that does more harm than good.

Why should the public pay $283 million in tax dollars for an agency harboring alleged criminals that inflames labor strife and confers benefit to a narrow, private interest?

We shouldn’t, the NLRB and its members are an arbitrary interference to expedient due process and the rule of law. Simply abolish the board then allow the 40 NLRB administrative law judges to continue hearing administrative cases and have the appropriate district court take appeals. These judges have some semblance of impartiality, serve long terms and are not as likely to seek future private-sector employment. Removing the redundant, partisan NLRB members will bring back some certainty to labor-management relations.