Gridlocked NLRB puts off notable labor-law cases

WASHINGTON -- A nonstop political tug-of-war has left the agency that referees labor disputes deadlocked for the longest period in its history, unable to resolve some of the thorniest clashes between unions and management.

The National Labor Relations Board typically has five members -- three Democrats and two Republicans, or three Republicans and two Democrats, depending on which party holds the White House.

But since January 2008, the board has been stuck with three empty seats and just two members -- one from each party. The standoff means the board has spent nearly two years putting off dozens of cases that could forge new policies.

The delay in ruling on tough issues means uncertainty for businesses, employees and unions wondering what is appropriate in the workplace. In one prominent case, the board must decide whether an employer can prohibit workers from using the company's e-mail system to send union-related messages. Other decisions could clarify where union members may distribute literature at work sites or offer guidance for those seeking to form unions.

"The only cases they are getting out are the pure vanilla cases, where it's abundantly clear the case should go one way," said former board Chairman Robert Battista, a Bush appointee who now is an attorney in private practice. The NLRB was created in 1935 to oversee union elections, prosecute unfair labor practices and resolve other disputes. The board's members each serve five years, with terms staggered so that one expires each year.

The current problem began when the Democratic-controlled Senate, angered over a series of board rulings that Democrats considered anti-labor, refused to fill the vacant seats during President George W. Bush's final year in office.

Those vacancies have lingered into President Barack Obama's first term, despite Democrats being in power in the White House and Congress. Obama nominated three new members to sit on the board last month, but the U.S. Chamber of Commerce quickly demanded a rare hearing on one of them, former union lawyer Craig Becker, calling his views "out of the mainstream." The chamber is a powerful lobby that regularly does battle with unions and is influential with many lawmakers, particularly Republicans.

It's not clear when lawmakers will consider the appointments or whether a hearing will be set. Given the likelihood that an Obama board would reverse several Bush-era precedents, Republicans may be in no rush.

With just two members, the NLRB has ruled on more than 480 cases in which the chairwoman, Democrat Wilma Liebman, and Republican board member Peter Schaumber can agree. They have put off dealing with about 50 more contentious cases that are being closely watched by both business and labor.

"Employers are wary of what to do, lest the law change again," said Peter Conrad, a New York labor lawyer who represents businesses. Even the "pure vanilla" cases are not without dispute. This year, the U.S. Court of Appeals for the D.C. Circuit threw into doubt the validity of every decision the board's two members have issued since January 2008. The court said federal law does not permit the board to act without a quorum of three members, a ruling that only adds to the uncertainty.

But at least two other federal appeals courts have reached the opposite conclusion, and the Supreme Court is expected to weigh in to resolve the split. Meanwhile, the agency is continuing to issue decisions.

Liebman, whom Obama elevated to lead the board this year, says all the uncertainty is frustrating.

"It would be nice if the process worked the way it's supposed to work, which is once a year someone is supposed to get renewed so you don't have these long vacancies," she said. "Every appointment is a battleground."

Instead, the politicized nature of NLRB appointments has forced presidents to put up packages of two or three nominees at once that include both Democrats and Republicans. That is meant to smooth the process.

Along with Becker, Obama wants to fill the empty seats with Mark Pierce, a Democratic labor lawyer, and Brian Hayes, a Republican who is the GOP's labor policy director on the Senate Health, Education, Labor and Pensions committee. The Chamber of Commerce has criticized Becker for asserting in a law review article that employers should have no legal role to play in whether their employees seek to organize a union.

The chamber also is concerned that Becker could try to circumvent Congress on the volatile issue of whether it should be easier for workers to organize unions. Unions want lawmakers to pass the Employee Free Choice Act, which would let workers form unions by signing cards instead of voting by secret ballot. Unions say businesses often try to intimidate workers in the days leading up to an election.

Business groups adamantly oppose the bill, saying it would let union leaders bully workers into signing up.

The bill has stalled in Congress without the support of some Democrats. If it doesn't pass, some Republicans fear that Becker could try to achieve the same result through board action.

Unions are expected to try passing a watered-down version that would keep secret ballots but offer more protections against employers who intimidate workers seeking to unionize.

If senators hold a hearing on Becker, it would be the first such hurdle put up for a nominee of the agency in more than a decade.