Goodbye NLRB --At Least For Now

The National Labor Relations Board has been turned by president Obama into an agency with a mission to help labor unions and hurt employers. It is the NLRB that is trying to shut down the new Boeing plant in South Carolina and its thousands of jobs on the grounds that the plant had to be built in a union state. It is also the NLRB that has been changing the rules for unionization elections from those which have been in force for many decades. The latest attempted change is to cut the time between the filing of documents to begin the challenge until the date of the mandatory election, thereby making it much harder for the employer to explain to its workers the merits of not going union.

It seems, however, that all of this one-sided work for the unions by the NLRB has come to an end for now. Indeed, it seems that the reaction to the over-reaching by the NLRB may even be the end of that body. Let me explain: In New Process Steel v. NLRB the Supreme court ruled that the NLRB could not take any action absent the presence of a quorum of three members (out of the five who are to be on the panel). That decision came in the summer of 2010. Right now there are only three members on the NLRB, however. Obama has nominated his usual strongly pro-union people for the other two positions, but these nominations have not been approved by the Senate. In December, the term of an additional member of the NLRB will end and there will be only two people remaining on the board. At that point, the NLRB will be unable to act until new appointments to it are approved. In an even more delicious move, the remaining Republican appointee on the board has made clear that he will not be attending any more meetings until after December; in other words, this man will prevent the NLRB from taking any legal action while it still could muster a quorum with his presence.

Obama could get around the logjam in the appointment process by using a recess appointment. He did this earlier in his term with another NLRB appointment. The House, however, has made clear that it will not recess at any time during the remainder of the Obama term, just in order to prevent such a recess appointment.

The Democrats are howling with outrage at these moves. In truth, however, the GOP is just using the Democrats own tactics back against them. During the last two years of the Bush administration, the Democrat controlled Senate held proforma meetings every three days just so that it would never be in recess; the specifically announced purpose of these sessions was to prevent recess apoointments by president Bush. And who can forget the Democrats who fled from the legislatures in Texas, Wisconsin and Indiana in order to deny those bodies a quorum. In each case, the Democrats were outnumbered in their chambers, but they thwarted the will of the majority by using their absences to prevent action.

I have to say that I love watching the hypocrisy of the Democrats as they assail the Republican on the NLRB for following the Democrat play book.