The Building Tradesman Newspaper

Friday, May 31, 2013

With an impotent NLRB, for workers, ‘who is going to enforce the law?’

By The Building Tradesman

WASHINGTON, D.C. – The National Labor Relations Board – the federal agency most responsible for upholding workers’ rights on the job – is, incredibly, nearly dead in the water.

Ultimately, the NLRB has been rendered virtually impotent by a Republican caucus in the U.S. Senate that wants the agency – whose rulings have tended to lean in favor of workers during the Obama Administration – to simply stop working and go away. Minority Republicans senators have used a filibuster threat to prevent the board from adding Democratic-leaning NLRB board members and creating a quorum. That threat, and two court of appeals judgments, has left the president little recourse for fixing the situation.

“I will continue to block all nominations to the NLRB,” said South Carolina Republican Sen. Lindsey Graham. “The NLRB as inoperable could be considered progress.”

Founded under the National Labor Relations Act of 1935, the five-member NLRB is the primary enforcer of federal labor law. The board interprets the law, and is the first line of defense, for example, for workers who are fired or threatened by employers with loss of job or benefits for engaging in protected union-related activities.

Presidents appoint the members of the NLRB, and it is established practice that a three-member majority of the board is from the president’s political party, with the other two seats taken by the opposing party. Rarely have any appointees met serious opposition, but that has changed during the Obama Administration.

“Currently the NLRB is under unprecedented attack by extremist congressional Republicans and corporate lobbyists who want to weaken its power to protect workers who choose to organize and form unions on the job,” wrote AFL-CIO President Richard Trumka this month. “While this issue may not grace the front page of every newspaper, the effects are and will continue to be felt across the nation.”

Even though they have been the minority party in the Senate, Republicans have for years been successfully filibustering Obama’s Democratic appointees. In 2011, the situation came to its first crisis with terms of prior members having expired. The board was down to two members, one of each party, and it lacked a quorum.

In response, President Obama made a “recess” appointment of two Democrats and one Republican in March 2010 to again create a quorum on the NLRB. There was ample precedent for the president to make such temporary appointments to fill positions in federal agencies, but legal questions were raised about whether Congress was technically in recess. A skeleton group of GOP lawmakers would briefly take Congress in and out of session with the unstated goal of keeping the president from making recess appointments.

With those questionable appointments in place, the NLRB’s chairman made the decision to keep the board operating and making rulings, even though the courts hadn’t ruled on the validity of the new members. With them, the board issued 910 published and unpublished decisions. Then came the Noel Canning decision, in a case brought by a company which claimed it was wronged by an NLRB decision and sued, questioning the validity of the NLRB’s decision-makers. Two separate U.S. Court of Appeals rulings, the most recent on May 16, said that Obama overstepped his authority in making the NLRB appointments. Those judgments, if upheld by the U.S. Supreme Court, will throw out the Canning ruling, and likely all the other rulings made by the NLRB during the period when recess appointments were made.

The process of affirming the positions of three existing NLRB board members and two new nominees by the president went before the Senate Committee on Health, Education, Labor and Pensions beginning on May 16 for an up or down vote. It’s assumed that the majority Democrats on that committee will move the nominees to a vote by the full Senate. Dems hold a majority in the full Senate, but there’s little doubt that a Republican filibuster looms for some or all the NLRB candidates.

Sen Tom Harkin (D-Iowa), who chairs the Senate Committee on Health, Education, Labor and Pensions, said the NLRB “is the only place workers can go if they have been treated unfairly and had their fundamental workplace rights denied,” and in recent years, the NLRB has ordered employers to reinstate more than 22,000 illegally fired workers.

“Political game-playing is impacting the everyday lives of people across America...there are real consequences for real people,” he said.

The ranking Republican member on the committee, Sen. Lamar Alexander (R-TN) said there exists “a troubling lack of respect” by Obama for the Senate’s role of providing “advice and consent” when such nominees are chosen. He said Obama “made recess appointments while the Senate was not in recess. This was unprecedented. The Senate must decide when we’re in session. Not the President.”

For an example of how the NLRB situation affects real people, the AFL-CIO’s Trumka pointed to Illinois pressman Marcus Hedger who was illegally fired in 2010 and who the NLRB ordered reinstated with back pay, but is caught in the legal limbo generated by  the court decisions challenging the authority of the NLRB. He urged the Senate to quickly confirm the nominees.

“Responsibility for providing needed stability and the functioning NLRB that working people need and deserve is now up to the Senate,” wrote Trumka. “Members should act quickly and confirm the president’s full slate of nominees. The strength of our economy depends on it.”

The strength of the labor movement also depends on it. Union bloggers and advocates are all over the undoing of the NLRB.

“Let’s not put too fine a point on it: a successful filibuster (of NLRB nominees) would spell disaster for organized labor,” wrote Kathleen Grier for the Washington Monthly. By late August, she said, another lack of a quorum on the NLRB would leave them again unable to issue rulings. “Employers would then have license to do pretty much whatever they want, so far as organized labor is concerned,” she said.

ThinkProgress’s Ian Millhiser sees even more sinister possibilities with a non-working NLRB – indeed the sky is the limit in this era of right-to-work laws and union-hating. “It may be possible,” he wrote, “for an employer to round up all of their pro-union workers, fire them, and then replace them with anti-union scabs who will immediately call a vote to decertify the union.”

Grier concluded: “Alternatively, the employer could simply refuse to fulfill its legal duty to bargain with the union – after all, who is going to enforce the law?”