Perhaps it is inevitable that the National Labor Relations Board is political. Certainly, the 1945 National Labor Relations Act created the NLRB to have a majority of members that reflect the political party that is then in power. Lately, the majority of the NLRB members are effectively pro-union Democrats for the first time since the Clinton presidency. What happens when the composition of the Board changes? Not surprisingly, much of the labor relations law changes. Recently, for instance, the NLRB reviewed and revised the law established by the Bush appointed Board about the permissibility of unions using employer-provided email systems. And although the Employee Free Choice Act failed to win a legislative majority in Congress, the NLRB is attempting to effectuate the pro-union goals of that legislation by regulation.
Whether you support unions or employers, the flip-flopping of labor law depending on which party is in power is not only unseemly, it violates the rule of law. The NLRB will no doubt argue that unlike federal courts it is not bound by the doctrine of stare decisis, the rule that requires adherence to precedent. Interestingly, this is a prudential rule, not a law. Abiding by precedents engenders respect for the rule of law and confidence in our legal system. The progression of law is supposed to be evolutionary, not cataclysmic. Politicizing the outcome of labor law cases can result in conduct that was lawful under prior rulings of the NLRB being held to violate the law according to the new composition of the NLRB. Such outcomes not only hurt the party that in good faith comported its conduct consistent with the prior rulings it leads to a general loss of credibility and authority on the part of the NLRB. Certainly the harmed party in such an outcome can appeal to the federal appellate courts, but that result requires the expenditure of additional funds as well as the loss of additional time and resources.
To complicate matters, the problem may temporarily solve itself. In 2010, the United States Supreme Court held in the New Process Steel case that the NLRB could not issue opinions or regulations with less than three members. Right now, the NLRB has only three members, one of whom is a Presidential recess appointment that expires at the end of this year. Although the Democratic-controlled Senate must approve any Presidential appointments to the NLRB, Congress has been preoccupied with the economy and the Republican controlled House of Representatives has threatened to go after the funding of the NLRB should the Senate approve appointees deemed unacceptable to the Republicans.
Stay tuned. If you don't like this program, it's bound to change--at least according to the current rules.
