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On Labor Day, labor board still in gridlock

Cases are in limbo as seats go unfilled

By Sam Hananel
Associated Press / September 7, 2009

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WASHINGTON - Another Labor Day, another year of dysfunction in the agency that’s supposed to protect workers from unfair labor practices and referee clashes between unions and management.

Decisions are stalled on dozens of disputes that could set labor-management policies for decades to come. Can employers prohibit employees from using the company’s e-mail system to send union-related messages? Where may union members distribute literature at work sites? What about organizing a union by simply signing cards instead of having a secret-ballot election?

These matters and more are going nowhere because the board, since January 2008, has had one Democrat, one Republican, and a political stalemate over three empty seats.

“The only cases they are getting out are the pure vanilla cases, where it’s abundantly clear the case should go one way,’’ said Robert Battista, former board chairman, a Bush appointee who now is an attorney in private practice.

The problem began when the Democratic-controlled Senate refused to fill the vacant seats during President George W. Bush’s final year in office, angered over a series of board rulings that Democrats considered antilabor.

Those vacancies have lingered into President Obama’s first term, despite having Democrats in power in the White House and Congress. Obama nominated three members to sit on the board last month, but the US Chamber of Commerce quickly demanded a rare hearing on one of them, former union lawyer Craig Becker, calling his views “out of the mainstream.’’

It’s not clear when lawmakers will consider the appointments or whether a hearing will be set. Given the likelihood that an Obama board will reverse several Bush-era precedents, Republicans may be in no rush.

“Employers are wary of what to do, lest the law change again,’’ said Peter Conrad, a New York labor lawyer who represents businesses.

With just two members, the board has ruled on more than 480 cases in which the chairwoman, Democrat Wilma Liebman, and the Republican board member, Peter Schaumber, can agree. They have put off about 50 more contentious cases.

Even the cases on which Liebman and Schaumber have ruled are not without dispute. Earlier this year, the US Court of Appeals for the D.C. Circuit threw into doubt the validity of every decision issued since January 2008. The court said federal law does not permit the board to act without a quorum of three members.

At least two other federal appeals courts have reached the opposite conclusion, though, and the Supreme Court is expected to resolve the split. Meanwhile, the agency is continuing to issue decisions.