by Mark I. Schickman

It’s normal that the National Labor Relations Board (NLRB) changes direction with each president since presidential appointments change the composition of the five-person Board, whose members have staggered five-year terms. However, a president usually can’t make radical appointments because the Senate won’t confirm an appointee who is way out of the mainstream. A way around that is by “recess appointment.” In January 2012, President Barack Obama appointed three of the five NLRB members while Congress was in recess, thereby avoiding a Senate confirmation battle whose outcome was uncertain.

Null and void?
Last month, a federal appeals court declared that Obama’s recess appointments of Richard Griffin, Terrence Flynn, and Sharon Block to the NLRB were unconstitutional and struck them down. The court also placed into question all of the Board rulings for the past year because it was operating with only two properly appointed members. If the U.S. Supreme Court agrees, this would be a major blow to the president.

In President Obama’s first term, he devoted so much political capital to the Affordable Care Act (ACA) that the rest of his legislative agenda went nowhere. In particular, he could never press for the Employee Free Choice Act (EFCA) or other union-related legislation for which organized labor clamored. The president tried to finesse that concern by robust administrative action in labor and employment―what he couldn’t get from Congress he got by an active and expanding U.S. Department of Labor (DOL), Equal Employment Opportunity Commission (EEOC), and NLRB. The NLRB has been particularly active, expanding its reach well beyond the union context into any employer activity that even arguably limits an employee’s right to publicly organize over wages and job conditions.

The NLRB created a new posting requirement under which every employer has to announce the right to organize. It publicly disapproved of social media policies that limit an employee’s right to bad-mouth coworkers or supervisors. It increased the dollar amount of back-pay awards by requiring daily compounding of interest. It weakened an employer’s right to maintain the confidentiality of witness statements obtained during an internal investigation.

The most significant change might be the NLRB’s new procedures speeding up union elections. Recognizing that a union might have spent a year collecting cards from employees, the election period is the first time the employer gets to explain its side to the employees. By cutting the average election period by nearly 50 percent, that opportunity is significantly weakened. These changes gave unions administratively much of what they couldn’t get from Congress.

The science of labor law
Now all of those NLRB actions might be nullified. There is more at stake here than simple partisanship. In theory, America benefits by having a single, unified labor policy. While that theory isn’t fully true (we have a patchwork of state laws that add their own minimum wages, discrimination rules, benefit programs, and much more), we should have an intelligent, rational central policy that covers the important science of labor law.

But the key words are “intelligent” and “rational.” This field is too important to fall prey to crass politics. Yet the unfortunate truth is that in Washington, labor law is all about political deals between the unions on one hand and employer advocates on the other, with nobody looking at the best way to really create and maintain a productive workforce and win-win economics. We shift from five years of Republican tilt to five years of Democratic bias and can never develop rules that are either neutral or long-lasting.

The ramifications are massive. We have seen pension plans raided because promised benefits disappear and job losses by the millions―largely because of government’s failure to maintain a wise and consistent employment policy. This latest wrinkle may mean that the court turned the clock back to January 1, 2012, erased every rule and practice we have developed since then, and forced us to start afresh.

If this had happened at your company, your chief executive would be retired. Instead, in Washington, we just continue business as usual, knowing we will operate under some rules but having no idea what they will be―indeed, not knowing what they have been for the past year!

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com.