NLRB overreach report, banners edition

Just two NLRB stories today. First, from the Workforce Fairness Institute:

The NLRB's war against the statutory scheme enacted by Congress in the Taft Hartley Act of 1947 was on full display last week.

In order to prevent the expansion of industrial conflicts from threatening interstate commerce, Congress made it an unfair labor practice for a union to threaten, coerce or restrain any person engaged in commerce to cease doing business with any other person. Picketing has long been considered inherently coercive. Consequently, picketing a neutral employer to cause it to cease doing business with another employer with whom the union had a labor dispute was unlawful secondary picketing.

For decades following the amendments, the Board and the courts construed picketing broadly. It could be a picket placed in a snow bank or the posting union agents outside the entrance of an employer's business. Last year, the Obama Board overruled this long-standing precedent and held that union agents holding huge stationary banners outside the premises of a neutral employer with whom the union had no dispute with an objective to stop business relations with a secondary employer was not picketing or its functional equivalent, thus not unlawful.

Last week the Board went even further. In a case known as Carpenters Local 1827 (United Parcel Service), 357 NLRB No. 44, the Board reversed a careful 71-page analysis by an agency Administrative Law Judge to find that a union and a union member could not have meant what they said when they called bannering "picketing" and refused to cross the “picket line” the banners created. Despite the fact that the union canceled a 5-day convention at the "bannered" Hyatt Hotel and a customer of UPS told the "bannered" UPS that as a result of the "picketing" it could not use UPS for its deliveries, the Board found that the activity was nevertheless not picketing or otherwise confrontational or coercive but protected speech. This, however, is precisely this kind of "an automatic response to a signal" that the Board has held distinguishes lawful persuasion from the unlawful labor practice Act proscribed by the Taft Hartley Act.

Speaking of the latter Act, a prior NLRB held 60 years ago: "Congress was attempting to deal a death blow to secondary boycotts . . . and desired to use all the power at its command to eliminate them from the American industrial scene." Not so for the current Board that is blinded by a desire to expand union power.

As summed up by Republican Board Member Brian Hayes in dissent, the majority's decision "resurrect[s] the coercive secondary boycott as a permissible tactic in labor disputes. It now remains for the courts or Congress to reverse the course."

Jennifer Rubin writes about President Obama's "Big Labor problem" in the Washington Post:

Obama, as he was in the Wisconsin fight over bargaining rights for public-employee unions, finds himself aligned with a special interest against the economic interests of a state. ("When he was asked about the Boeing case earlier this summer, President Obama said that the N.L.R.B. is an independent agency and that his hands were tied. That may be true, though it's worth pointing out that most of its top executives are his appointees.") That assortment of appointees would include Craig Becker, a former AFL-CIO attorney, whom Obama installed by recess appointment.

Technorati tags: labor politics unions news organized labor afl cio Democrats law legal nlrb craig becker