Charles S. Birenbaum

While studying law at Georgetown University in 1980, Birenbaum clerked at the National Labor Relations Board under then-Chairman John H. Fanning, an Eisenhower appointee with a pro-labor reputation.

"He was a great mentor who hoped I would join the NLRB after I graduated," Birenbaum said.

Fanning suggested that instead of moving directly to the NLRB, Birenbaum should first find a job at a law firm representing management to get a fuller picture of how labor laws worked.

Birenbaum took Fanning's advice but never returned. He has spent nearly 35 years representing companies in collective bargaining talks; whistleblower and discrimination suits; 9th Circuit and state appellate cases; legislative hearings; and periodic appearances before the NLRB.

Over the past decade, Birenbaum has represented a variety of clients at the agency, ranging from a dialysis center in upstate New York to a cruise ship line in San Francisco. The cases have often ended quickly in Birenbaum's favor. In two separate cases in the past two years, it only took two months for unions to drop their organizing efforts involving a power plant in the Sierras and a water treatment company in the East Bay.

On the other hand, Birenbaum spent more than four years trying to block union attempts to organize 20 workers at a geothermal energy plant in Hawaii, in a case that he insists "touches on the fundamental notions of the role of the NLRB."

In May 2012, employees at Puna Geothermal Venture voted 11-9 to join the International Brotherhood of Electrical Workers. But the company refused to recognize the union. It argued that the workers may have felt pressured to join the union after a supervisor joined the drive. And it said the NLRB tipped the scales toward the union when, just before the election, it required employers nationwide to put up posters informing workers of their rights to unionize.

"The poster made it seem as if the NLRB was telling them to vote for the union," Birenbaum said. "An administrative agency needs to strive for an appearance of neutrality when implementing the law."

When the NLRB heard the case, it rejected the idea that its poster violated its neutrality. Although the poster told workers it was their right to form unions, it also stressed that it was illegal to be coerced into voting for one. The NLRB also rejected the idea that a single supervisor's support for the union vote constituted intimidation, especially since it wasn't clear he even fit the federal definition of a supervisor.

In March 2013, it ordered Puna to recognize the union. Birenbaum says the decision reflected the leftward tilt of the NLRB under President Barack Obama.

"Any president can dominate the ideology of the NLRB, which has had wide swings in policy depending on which president is in office," Birenbaum said. "Under Obama, NLRB decisions have tended to slant in favor of labor organizing."

Birenbaum added that the decision was made illegally, since the five-person NLRB at that time included two "recess appointees," who had been added in a process that the U.S. Supreme Court later ruled was illegal, invalidating any decisions that they had made. Once that happened, Birenbaum said, "the only solution was to throw out the whole case and do the election over again."

In court, Birenbaum argued that the Puna dispute could have easily been resolved if only the NLRB had waited for a congressionally approved panel to replace Obama's recess appointees. But once the new panel was seated, it merely reiterated what the previous panel had found: by "refusing to recognize and bargain with the union...[Puna] engaged in unfair labor practices."

Birenbaum appealed the decision to the 9th Circuit, but as the case dragged on, employee turnover took its toll, so that by 2015, only five of the 20 workers who took part in the union vote were still working there, replaced by workers who may not have been so keen to join the union.

Late last year, the union dropped its NLRB complaint, with an agreement that if it were to gather enough support for a new election, it would have to start the proceedings all over again.

"All NLRB cases against the employer were dropped, settled, and/or withdrawn," Birenbaum said. "Individual settlements were reached with several employees who filed unfair labor practice charges, but who are no longer employed at the company. None of them were reinstated... And the employer currently has no obligation to recognize and bargain with the union."

— Dean Calbreath