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Unrequited Love

The unions went all in for Obama. What’s he done for them?

Mar 4, 2013, Vol. 18, No. 24 • By MARK HEMINGWAY
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The second development worth noting is that a federal appeals court ruled on January 25 that three of Obama’s recess appointments to the National Labor Relations Board are invalid. While the White House has been quick to give unions short-term political payoffs such as billions in stimulus construction contracts, Obama’s pro-labor appointments to the NLRB were one of the few tangible things the administration had done to deliver long-term structural benefits to unions. Those appointments have now backfired spectacularly.

After helping elect Obama in 2008, unions demanded their own personal fox be appointed to guard the NLRB’s henhouse. Craig Becker, a former attorney for the AFL-CIO and the Service Employees International Union, who had authored a law review article arguing “employers should have no right to be heard” in a wide swath of labor disputes, was to be appointed to the federal body that’s supposed to arbitrate disputes between labor and management. Becker’s appointment was so controversial that his nomination to the NLRB failed in the Senate on a bipartisan vote.

Regardless, Obama installed Becker with a recess appointment. True to form, Becker was behind a flurry of controversial pro-union NLRB decisions, heard several cases involving his former employers, and even ruled on an NLRB decision despite having filed a brief in the case as a lawyer a few years before. This all led up to his involvement in the Boeing fiasco, in which the NLRB told the aviation giant that it couldn’t open a new plant in right-to-work South Carolina while it was embroiled in a labor dispute in Seattle. In effect, the supposedly impartial NLRB put pressure on a private company to resolve a labor dispute in favor of the union.

Becker’s recess appointment expired, and Obama was facing additional vacancies on the board. With the business community justifiably fearing that Obama would continue to politicize the NLRB, Senate Republicans threatened to block Obama from making recess appointments, denying the board a quorum and hobbling it. There is precedent for blocking recess appointments—when President Bush started making recess appointments after the Democratic-controlled Senate did nothing to approve a backlog of 190 appointees, Senate majority leader Harry Reid retaliated with 30-second-long “pro-forma” sessions on days off so the Senate would technically not be in recess. Bush made no more recess appointments.

Facing threats to have his nominees blocked, Obama made three recess appointments to the NLRB—disregarding whether the Senate was in recess. The federal court’s rebuke was sharp. Allowing such appointments, it held,


would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.

The court’s ruling also invalidates all of the decisions the NLRB has made in the past year, including hugely significant decisions in which the NLRB overturned a 50-year precedent and ruled that employers have to continue collecting union dues after a collective bargaining agreement has expired. This gives employers significantly less leverage in labor negotiations and would constitute a major union victory had it been allowed to stand.

The NLRB is moving forward in defiance of the ruling, but questions surrounding its validity and recent history of activism abound. The board risks significant political blowback if it courts more controversy. Republicans have been kicking around a bill for some time that would abolish the NLRB, and there’s a strong case to be made for doing just that. The number of labor disputes is no longer sufficient to justify resolving them with a politicized administrative body rather than in the courts. When the NLRB was created in 1935, one in five American workers was unionized. Union numbers, at least in the private sector, have dwindled considerably since then.

As it happens, the latest membership numbers are the third postelection development that augurs poorly for unions. Though union membership has been steadily declining, it dropped steeply last year. Union membership, now 11.3 percent of the workforce, is at its lowest level since 1916, according to Labor Department statistics released in January. Just 6.6 percent of the private sector workforce is unionized. If electing Democrats was supposed to stop the bleeding, it turns out to have been a mere bandage at a time when a tourniquet was needed.

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