Obama's Pro-Union Nominations to Labor Relations Board Stalled

by STEVEN HILL & DMITRI IGLITZIN
Published by The Nation Magazine

January 20, 2010

A pitched battle is taking place behind closed doors over the Obama administration's appointments to the National Labor Relations Board (NLRB). It's unfortunate that the conflict has avoided the glare of the public spotlight, because the outcome of this partisan skirmish may be more important than that over the labor movement's number-one legislative priority, the Employee Free Choice Act (EFCA).

This fight is clearly ideological, pitting progressives and liberals against conservatives, including conservatives within the Democratic Party. But the conservatives have been more vigilant, mobilizing their opposition, while the White House, lacking sufficient pressure from either labor unions or their progressive allies, or from Congressional Democrats busy fighting over healthcare, has been content to avoid any additional bruising conflict.
In keeping with organized labor's wishes, President Obama has nominated two Democrats and one Republican to join the two sitting members, one a Democrat and the other a Republican, on the five-member NLRB. If these nominations are approved by majority vote in the Senate, the NLRB will be controlled by labor-friendly Democrats for the first time since the Clinton administration.
To understand what is at stake, it's necessary to understand the potential power of the NLRB, a little-known administrative agency with broad authority over labor matters. The president appoints and the Senate confirms members to this body, and an NLRB on which Obama appointees constitute a majority could overturn a number of key decisions issued by the Bush administration-appointed board. Most legal scholars and labor experts believe that the NLRB has the authority to enact procedural changes that could, among other things:
• drastically shorten the time frame for holding union elections;
• eliminate cumbersome pre-election procedures that allow employers to dispute who is eligible to vote in such elections;
• require the employer to turn over employee names, addresses and phone numbers early in any union organizing drive;
• require equal access to both workers and the workplace for unions during campaigns; and
• increase the penalties on companies that violate their workers' legal rights.
The NLRB even could make it easier for workers to unionize based on a card check showing of majority support--just as the EFCA would. It could force employers to recognize a union as the representative of its employees so long as a neutral third party verified that more than 50 percent of those employees had signed a written statement expressing a desire to be represented by that union. That's a fairer way for workers to become unionized than the current cumbersome and flawed NLRB election process, which is often abused by employers who threaten retaliation against their workers.
The Democrats appointed by President Obama have considerable skin in the game. The sitting Democrat, Wilma Liebman, formerly with the Bricklayers and Teamsters unions, is a longtime hero to organized labor for her eloquent dissents from numerous antilabor decisions issued by the Bush-appointed board. Mark Pearce, one of Obama's current appointees, also is a longtime union advocate.
But it is not Liebman or Pearce who has business interests petrified, but one of Obama's other appointees, Craig Becker. Becker serves as associate general counsel to the Service Employees International Union and the AFL-CIO.
Becker has argued that employers "should be stripped of any legally cognizable interest in their employees' election of representatives." In practice, this means that employers could no longer oppose union organizing drives through NLRB or other administrative proceedings but would instead become mere bystanders in that process, removing one of the most powerful tools in the employer arsenal of antiunion strategies. It is because of these types of opinions that the Wall Street Journal has called Becker "labor's secret weapon" and accused him of wanting to "rig the rules to favor unionization."
Becker's nomination last spring triggered a seesaw controversy that has been playing out for months. On Christmas Eve the Senate officially "returned to the White House" Becker's nomination after Senator John McCain "put a hold" on Becker. Labor advocates were concerned that President Obama would quietly drop Becker's appointment, but to the president's credit he plans to renominate Becker (though Obama could have gone even further and given Becker a recess appointment, a power former President Bush was never reluctant to use).
To date, none of Obama's three appointees have been confirmed by the Senate; they remain mired in political quicksand. Without a stronger push from the White House, few are expecting this battle to conclude anytime soon. And without more pressure from unions, the grassroots and labor-supportive Beltway forces, the Obama administration feels little compulsion to move.
In the meantime, few beyond labor insiders even know what's going on. The saga of the NLRB nominations has stayed out of the spotlight, except for right-wing blogs and unionbusting law firms' newsletters sent to employers. On January 14 the New York Times reported that the NLRB, with only two of its five members seated for the past two years, has become near comatose. Not only are there a very high number of tie votes on disputed issues but the legal validity of the decisions issued by those two members, even when they agree, is currently the subject of conflicting federal court decisions. In May the US Court of Appeals for the District of Columbia held that because two members do not constitute a quorum of a five-person board, the NLRB decisions currently being issued are not legally binding. That issue is pending before the Supreme Court but is not likely to be resolved soon.
The battle over nominations to the NLRB, even more than EFCA, may be what really determines the extent of labor's gains under Obama. Should Obama persevere and see his nominations confirmed, there is reason to believe that much of what organized labor hopes to accomplish via EFCA will be realized through the rule-making power of the NLRB. But White House loyalty to these nominees may never gain sufficient spine unless labor and its progressive allies mobilize to push Congress to finish the confirmation process. Without mobilization, this episode may end up being yet another example of Obama's promises not being realized and hopes going unfulfilled.

Interview 4th Ward City Council Candidates

Mid-Missouri Labor Club Members are invited to help interview candidates for the Columbia 4th Ward City Council seat at our meeting on Monday, January 11, 6:00 pm at the Labor Temple, 611 N. Garth Street. Now is the time to ask the candidates where they stand.

Payroll dispute riles company Shepherd’s Co. sues MU over rejection.

This story on the front page of the Sunday Tribune has created a buzz online. If you want to read the sometimes crazy comments by readers, go to http://www.columbiatribune.com/news/2010/jan/03/payroll-dispute-riles-company/. It's clear that some people in Columbia are so anti-union that facts don't matter to them and others don't have a clue what unions are really about...or both! On the other hand, there are comments by people who understand the importance of prevailing wage laws.

JANESE HEAVIN
Sunday, January 3, 2010
A Fulton-based company is suing the University of Missouri for denying it the chance to bid on future construction projects.
__________________________________
STATE ANNUALLY SETS PREVAILING WAGES PER JOB DESCRIPTION

State and federal laws require the payment of prevailing wages to employees working on public projects. In Missouri, prevailing wages are based on wages paid in each county and the city of St. Louis for 26 different occupational titles, such as carpenter or iron worker. The state sets the rates each March.
The Cole County rates, for instance, range between $17 and $33, depending on job title. Employers can voluntarily pay more than prevailing wages.
In a petition filed Oct. 30 in Boone County Circuit Court, The Shepherd’s Co. argues the university has unlawfully denied its constitutional right and is asking a judge to restore the company as an eligible bidder.
___________________________________

The university’s facilities planning and development office in October sent a letter to Shepherd’s Co., saying it had been placed in a rejection list. “Should your firm be the low bidder on any University of Missouri construction project, a recommendation will be made to reject your bid,” Director David Sheahen wrote. “Should your firm bid as a subcontractor or supplier on a university construction project, appropriate action will be taken to prohibit your firm’s participation.”

The letter claimed the company “balked at requests to release records related to prevailing wage compliance.”

But Jabbock Schlacks, who oversees the construction partnership, said the company complies with prevailing wage laws when required to do so and denied that the company rejected university requests for proof.

“We have nothing to hide,” Schlacks said. “We believe we’ve always been in compliance.”

Shepherd’s Co. is a partnership made up of more than 60 owners, all of whom attend Shepherdsfield Church. The church has been in existence for more than 20 years in the Fulton area and is a communal society whose members relinquish personal property to the group. The company offices are located on property deeded to New Christian Life Fellowship, which adjoins the church property.

Payroll documents from a September job at the university show each of the owner-employees of Shepherd’s Co. were paid separately. Rates of pay were $40 an hour for the week of Sept. 11, with standard pay between $35 and $45 in earlier weeks at the same job.

Curtis Chick Jr. with Sheet Metal Workers’ Local 36 said local labor unions are concerned about the company. He said they began looking into Shepherd’s Co. after the group was awarded the university contract for work at the Bradford Technology and Transfer Center.

“Sixty-four owners — give me a break,” he said, referring to the company’s partnership setup. “That’s a game. I want to make sure they don’t keep taking work away from the contractors and people I represent.”

The Missouri Department of Labor and Industrial Relations’ Division of Labor Standards appears to be looking into Shepherd’s Co., although spokeswoman Amy Susan said she could neither confirm nor deny an investigation exists. The division’s director, Carla Buschjost, formerly worked with Chick at Sheet Metal Workers’ Local 36.

The labor division has requested thousands of payroll documents from the company. Shepherd’s owners originally fought the request in Cole County Circuit Court, citing demands on time and resources, Schlacks said. “That’s a tremendous amount of work for a small company,” he said, adding that the state division wants some 35,000 documents that span three to four years.

Circuit Judge Richard Callahan subsequently ordered the company to release documents.

In the meantime, the labor division sent a letter about Shepherd’s Co. to Columbia Public Schools, which was ready to award the company a contract for work at the Columbia Area Career Center.

“We were prepared to award them a contract but received a letter from the Division of Labor Standards saying there were allegations the company didn’t pay prevailing wage,” said Greg Cooper, who works in the district’s business office. “This particular job requires that of a contractor. That was supposed to be factored into the bid. We thought it would be best to pull the bid and in January consider the next low bidder. We thought it was best to wait until the issues were resolved.”

Shepherd’s representatives were adamant that the allegations are unfounded.

“Shepherd’s Co. complies with prevailing wage laws in every public contract,” the company’s Jefferson City-based attorney, Mark Comley, said.

The city of Columbia last week sent Shepherd’s Co. payroll documents to the state labor division, said Marilyn Starke, the city’s purchasing agent. She said she’ll let the division determine whether the employee-owner wages are up to par. The company is currently working on a project at the city’s Grissum Building.

“We’re not pulling them off the project at this time,” Starke said. “They do good work, high-quality work.”

Reach Janese Heavin at 573-815-1705 or e-mail jheavin@columbiatribune.com.