Short-Handed NLRB Sets Aside 15 Percent of Cases, Chair Tells Senate

A shortage of commissioners has caused the National Labor Relations Board to set aside about 15 percent of the cases in its pipeline, according to its recently appointed chairman.

Only two people are serving on what should be a five-person board that administers federal law governing labor organizing. Nominees for the other three positions haven’t been confirmed by the Senate, as the Democratic majority tussles with President Bush over dozens of nominations.

Peter Schaumber, a current NLRB member who was elevated to chairman by Bush on March 18, told a Senate appropriations subcommittee on Wednesday, April 2, that the board continues to operate.

Schaumber and Wilma Liebman, who was appointed by President Clinton, issued 54 decisions from January 1 through the end of February. For the last five fiscal years, the board has issued 500 cases annually.

The short-handed board is limiting its agenda. “We cannot decide cases which raise issues of first impression and we can’t revisit board law,” Schaumber said in an interview following his Capitol Hill appearance. He has instructed NLRB staff to look for older cases in which there is likely to be common ground between him and Liebman.

During the hearing, they disagreed on how the NLRB has performed during the Bush administration, when it has had a Republican majority.

Schaumber said that in fiscal year 2007 the board issued decisions on 105 of 111 post-union-vote appeals in a median time of 131 days and resolved 78 percent of representation cases within 100 days.

The board has reduced its case backlog by 66.5 percent over five years to a total of 207 cases. In the last fiscal year, it has collected $110.3 million in back wages and reinstated 2,456 employees.

“The agency’s accomplishments, gauged by almost any statistical measure, have been impressive,” Schaumber said.

Liebman asserted that the board is biased toward management, undermining worker confidence in its ability to protect their organizing rights.

“More and more, unions are seeking to negotiate recognition in the workplace, rather than use the board’s election machinery,” she said in prepared testimony. “The board’s procedures are seen as taking too long, leaving workers vulnerable to coercion by employers and generating campaign animosity that can taint a new bargaining relationship.”

Sen. Tom Harkin, D-Iowa and chairman of the Senate appropriations subcommittee on labor, also expressed skepticism. He wasn’t impressed with the $110 million in back-pay recovery over the last fiscal year.

“What that doesn’t tell us is how many [companies] didn’t have to pay back pay,” he said. “That sounds like a lot of money. We don’t know what that means in the broad picture.”

He also was frustrated by the lack of statistics on how many unfair-labor-practice complaints are filed during unionization campaigns.

Gordon Lafer, an associate professor at the University of Oregon, said that one in 17 eligible voters in a workplace union election are fined, demoted or suspended. He argued that companies have too much power to squelch efforts to establish collective bargaining.

“They’re problems that require fundamental changes in the law,” he said.

But John Raudabaugh, a partner at Baker & McKenzie in Chicago, attributed the drop in unionization—currently 12 percent of all workers—to changes in the economy that have hurt such sectors as manufacturing, where unions are strongest.

He said that in the last fiscal year, unions won 54 percent of 1,559 workplace elections, the same success rate that they achieved in the early 1970s.

“Unionization is in decline in most Western democracies,” Schaumber said.

Liebman maintained that rising income inequality demonstrates that the National Labor Relations Act, which has been in place for more than 60 years, is not working and needs to be reformed.
—Mark Schoeff Jr.