THE NLRB: THEY JUST DON’T GET IT

Marxism On the March: The labor board’s exiting leader responds to critics and, in doing so, reveals where the Obama administration is taking the U.S.

Rarely has a federal agency been attacked with as much vitriol as the National Labor Relations Board now faces.

Conservative newsletters describe the presidentially appointed board as “Marxism on the march” and its members as “socialist goons.” Business groups denounce it as a handmaiden of union bosses, while Representative Michele Bachmann, a Republican presidential candidate, says she will shut down the agency if elected. And Senator Lindsey Graham, Republican of South Carolina, vowed to cripple the board by blocking confirmation of any future Democratic nominees after the agency’s top lawyer sought to block a Boeing plant in his state.

All of this has deeply troubled Wilma B. Liebman, who constantly defended the board in her position as is chairwoman – a post she gave up on August 28 when her term expired. In an interview just after leaving, Liebman insisted that the agency was misunderstood. “The criticism is grossly out of proportion to what has happened and what has been done,” said Liebman, who was first appointed to the board by President Bill Clinton in 1997. “We knew we were going to have a boxing match, but we didn’t expect our opponents to come in with a baseball bat.”

The board’s role is to enforce the National Labor Relations Act, a 76-year-old law that sets the rules for unionization efforts and collective bargaining in the private sector. But in practice, it has always moved with political tides. With its five members appointed by the president, the board has alternately leaned toward helping or hindering unions, depending on which party controlled the majority of seats.

Liebman said that under the Obama administration, the Democratic-controlled board had reversed only a handful of rulings made by the Republican-controlled board appointed by President Bush. “The perception of this agency as doing radical things is mystifying to me,” she said. “The rhetoric is so overheated.”

Liebman, 61, said she asked not to be reappointed and was ready to move on. In her view, a major reason for all of the venom is that many people have never accepted the National Labor Relations Act (or the New Deal when it was enacted), and its embrace of unions and collective bargaining.

She said numerous law firms, business associations and partisan groups were forever warning about how dangerous the NLRB was because that would help them attract clients or contributions. She said that as soon as President Obama was elected, such groups began sending out alarmist warnings about all the evil the “Obama board” would do.

But many business associations and conservative groups argue that the labor board has indeed lurched well to the left. For example, the agency is pushing a major rule change that would speed up unionization elections, which would most likely make it harder for employers to fight unionization and easier for unions to win organizing drives. Critics were also quick to denounce an action that the board took in late August: for the first time, it ordered all private sector employers to post notices about their employees’ rights to unionize and bargain collectively.

Peter C. Schaumber, an appointee of President Bush who served on the board for eight years, said, “There has always been a certain arc in the board’s decisions when control changes between parties. Certain cases would go back and forth, but what we’re seeing now goes well beyond that arc.”

Generally considered an independent agency, the board typically has five members who are appointed by the president, although with Liebman’s departure, the board will be down to three members. The Obama administration recently announced that the president had designated a current member, Mark Pearce, as the new chairman.

After Craig Becker’s appointment expires in December, the board will shrink to two members. If Republicans follow through on their threat not to confirm any Democratic nominees, the board will be largely paralyzed because it cannot legally make decisions with just two members, a situation it endured for 26 months beginning in 2008 when both parties blocked each other’s nominees. The agency also has a general counsel, who is appointed by the president and is independent of the five-member board. The general counsel acts as the agency chief prosecutor, responsible for bringing civil cases against employers and unions that violate the National Labor Relations Act.

In recent months, the board’s critics have been particularly upset by a case filed by its acting general counsel, Lafe Solomon, that accuses Boeing of illegally retaliating against union members in Washington State when it decided to build a $750 million aircraft assembly plant in South Carolina. Although Solomon has said the White House played no role in the case, President Obama had nominated Solomon to be general counsel. Irate Senate Republicans say that they have no intention of confirming him.

In an unusual move, Darrel Issa, the California Republican who is chairman of the House Oversight Committee, has subpoenaed all the NLRB’s papers in the Boeing case. Issa has described the case as an “unprecedented” job-killing effort that interferes with corporations’ freedom to decide where to locate operations. Solomon has agreed to turn over many papers, but not all, calling the subpoena improper interference in a pending case.

Marshall Babson, who served on the labor board under President Ronald Reagan, criticized Issa’s move. “The principle of Congressional oversight is sound and important, but this particular undertaking transcends all abounds,” he said. Libman declined to comment on the Boeing matter because it was expected to eventually reach the board after hearings before an administrative judge. In the interview, she said that many of the board’s decisions were incremental, often furthering her goal of adapting an industrial-era law to changing times.

But Randel Johnson, senior vice president for labor policy at the U.S. Chamber of Commerce, sees things differently. “Each one of these actions is like the Chinese water torture, individually,” he said. “The act has been around since 1935, but all of a sudden we’re seeing all these big things come to fruition over the last four or five months.”

Samuel Estreicher, a law professor at New York University who sometimes represents employers, said that none of the board’s recent rulings had been “out of the norm.” But he added that the Boeing case and the push to issue the new rules for unionization elections were bold departures, bound to anger employers. “The board has been trying to do too much too fast,” he said. In seeking to explain the vitriol, Estreicher said that as organized labor declined in importance, companies that were still affected by unions had mobilized aggressively against them. Moreover, he said that as the Republican Party moved to the right, it grew more hostile than ever to unions.

Liebman said her firm goal as chairwoman had been to “further the policy of this statute, which is to further the practice of collective bargaining, obviously collective bargaining freely chosen. Some say collective bargaining is antithetical to the economy,” she added. “I don’t buy that at all. This was a statue that worked. It created the middle class. It created good jobs.”

She said the nation’s sagging economy would benefit from having more, not less, collective bargaining because it would put more money in workers’ pockets. “If you increase workers’ purchasing power, that can create a stronger, more sustainable economy,” she said.

This report first appeared in the Business section of the August 30, 2011 edition of the New York Times.