National Labor Relations Act

  • July 21, 2015
    Guest Post

    by Reuben Guttman, partner, Guttman, Buschner & Brooks, PLLC; Guttman is a member of the ACS Board of Directors.

    In the suffocating heat of a Washington, DC July, my thoughts drift back 30 years to a sweltering Beaumont, Texas summer. A fried fish sandwich and a milkshake at the “Pig Stand,” the smell of hydrocarbons wafting from nearby petrochemical plants, and talk of football – at any level – was Beaumont back then. 84 years after Beaumont’s 1901 Spindletop gusher gave rise to the formation of Gulf Oil and Texaco, it seemed that nothing in Beaumont had moved it forward to a new identity. It was a city stuck in time.

    The biggest event in Beaumont during that summer of 1985 was the strike by several hundred black women at the A.W. Schlesinger Geriatric Center. The strikers, ranging from cooks to nursing staff, were fighting over an attempt to roll back the average wage from $4.10 to $3.90 an hour. Fresh out of law school, I had been assigned by the Service Employees International Union (SEIU) to assist the strikers. Our office was a wooden structure with two small offices and a multipurpose room used for union meetings, press briefings, and cooking gumbo. It was in that office that I first met Cecile Richards and Kirk Adams who were SEIU’s organizers on the ground. All of us were in our 20s. Cecile, of course, would later become president of Planned Parenthood and speak at the Democratic National Convention. Kirk rose to become an International Executive Vice President of the SEIU.

    Although I had worked with SEIU though law school, the summer of 1985 was for me a crash course in the working person. In this case the workers cleaned bed pans and cooked food for the elderly; they set work aside for Sunday church services and rose to the occasion as organizers and press spokesmen during the Schlesinger labor dispute. I learned that dignity, intelligence, and perseverance are not traits reserved for those who wear a suit and tie. As the strike turned into a lockout and dragged through the heat of the summer, from that small union hall I learned to view things from the lens of workers, not just from the technical vantage point of a labor and employment lawyer whose analysis of case law is akin to dancing on the head of a pin. I learned for myself – but of course had to explain to others – that justice under the law and fundamental fairness are not necessarily the same thing. At the end of the day, neither Title VII of the 1964 Civil Rights Act nor the National Labor Relations Act offered any relief for the Beaumont strikers. There was law but no rights under it.

  • May 17, 2013
    Guest Post

    by Senator Tom Harkin (D-Iowa). Sen. Harkin is the Chairman of the Health, Education, Labor, and Pensions Committee.

    This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee, which I chair, held a hearing on the full slate of five nominees to the National Labor Relations Board (NLRB): Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III, and Philip Andrew Miscimarra. These are vitally important nominations because the enforcement of our labor laws is essential to the growth of a strong middle class and to the smooth functioning of businesses large and small across the country. Without Congressional action, the NLRB will go dark in August -- which could have a truly troubling impact on our economy.

    Workers and employers alike rely on the fact that the Board will enforce our labor laws, and enforce contracts between labor and management.  For the thousands of American workers fired every year for trying to organize a union in their workplace, an NLRB out of commission means that those workers would have to wait years before they could get their job back or any back pay for lost wages. From the business perspective, the NLRB also ensures that unions do not step outside the law in their interactions with workers or employers. Perhaps that is why a Senior Counsel to the National Federal of Independent Businesses (NFIB) said that “to have the Board totally shut down would be a travesty.”

    Despite this agreement on the importance of the Board’s operations, in recent years, Congressional Republicans have waged unprecedented attacks on the NLRB.  While it appears that their real goal might be to repeal the National Labor Relations Act altogether, because they know that an attempt to repeal the law directly would surely fail, they have worked instead to dismantle the Board by attempting to hold up nominees or strip its funding. In the last Congress, House Republicans launched a series of efforts to shutter the NLRB, including voting to defund the Board entirely, and proposing a budget to force the Board to furlough all of its employees for most of 2011. Republicans have also proposed bills to abolish the NLRB and bills to limit its ability to enforce decisions and promulgate regulations.

    Of course, these efforts to undermine the Board are all part of a larger Republican assault on the unions and on collective bargaining in states like Ohio, Wisconsin, and Michigan.  These attacks don’t just hurt unions -- they undermine the very existence of the American middle class.

  • May 13, 2013
    Guest Post

    by Johnda Bentley, Assistant General Counsel, Service Employees International Union (SEIU)

    The National Labor Relations Board (NLRB) is the agency that protects the rights of private sector employees to join together to improve their wages and working conditions. Until the Senate confirms President Obama’s nominees to the NLRB, employees’ rights and our economy are at risk.

    The NLRB stopped functioning properly in late January when the D.C. Circuit invalidated the recess appointments of two of the three current Board members in Noel Canning. With only one valid member appointed, the court concluded, the Board had lost quorum. Since this ruling, employers have challenged the agency’s authority at every level.

    The validity of the recess appointments is unclear. The issue is pending before several other circuit courts, and Noel Canning was appealed to the Supreme Court. However, assuming the Supreme Court grants review, a decision is unlikely before next year. 

    Following Noel Canning, President Obama re-nominated the two recess appointees, both Democrats. And in April, the president made three more nominations, includingtwo Republicans and the current Chairman, a Democrat. The Chairman’s current term will expire on August 27, 2013, unmistakably leaving the Board without a quorum if there are no appointments before that time. If Senate confirms all nominees, there will be a full, five-member Board. 

    In the meantime, the Board continues to issue decisions with the recess appointees, but unfair labor practices largely remain unremedied. This is because orders of the NLRB must be enforced by circuit courts, and all parties have the option to appeal to the D.C. Circuit. 

  • May 9, 2013
    Guest Post

    by J. Chris Sanders, Counsel, Jobs With Justice

    President Obama’s nominees to the National Labor Relations Board are set to appear before a Senate hearing next week. What's at stake? To recap, the president nominated two labor-side members of the Board, who weren't confirmed due to the dysfunction holding up all kinds of administration nominees. Obama then appointed them in a recess in order to get a quorum of three Board members, who then rendered hundreds of decisions. The regal U.S. Court of Appeals for the D.C. Circuit recently ruled that the recess appointments were improper, and those hundreds of decisions were made without a quorum. So the decisions are in limbo, and the power to decide cases in the future at all is at risk. The administration has appealed the D.C. Circuit’s opinion to the U.S. Supreme Court. In the meantime, the president has nominated two management-side Republicans (a traditional, balanced approach) and re-nominated the chair to complete the five-person Board. They're headed to headhunter hearings before the Senate next week. 

    The dust-up has big consequences for working people, labor law, presidential appointment power, and the rule of law in the workplace.

    Pity the poor NLRB, enforcer of the venerable National Labor Relations Act. Over the last couple of years, this little federal agency has had its turn in the barrel with the "Obama-is-a-socialist" faction. Just one, prominent example: In 2011, a routine investigation found that Boeing's decision to build a new aircraft-production facility in South Carolina instead of at its Seattle base was partly to punish Seattle union workers for previous strikes. (The right to strike- to withhold one's labor to oppose mistreatment- is, at least on paper, federally protected from retaliation.) The evidence was strong, so the NLRB moved forward, and issued an unfair labor practice complaint.

    The mouth-breathers went ballistic. They blew it out of proportion into an attack on the New South and the marketplace. Boeing became a cause célèbre in Republican politics. A congressional committee subpoenaed the NLRB's General Counsel to a hearing in South Carolina. Hundreds of bills have been filed to destroy, de-fang, and de-fund the agency. Its budget is and was under attack, even before the sequester.  
  • January 11, 2013
    Guest Post

    by Ellen Dannin. She is the author of  Taking Back the Workers’ Law - How to Fight the Assault on Labor Rights (Cornell University Press) and the Fannie Weiss Distinguished Faculty Scholar and Professor of Law at Penn State Dickinson School of Law.

    Through the decades, many proposals have been made to replace, repeal, or amend the National Labor Relations Act. Most have foundered for good reason. Amending the NLRA requires applying the precautionary principle – first, do no harm. 

    In the case of the NLRA, proposed amendments should be justified by showing that a change will promote the NLRA’s purposes and policies. The ultimate policy is to restore equality of bargaining power between employers and employees by “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”  The basic goal was to balance the power corporation and partnership law gave employers to become collective with a law that gave employees the right to take collective action to improve working conditions.

    The standard to measure the value of proposals to change the NLRA is not whether the change would increase the number of union members – although that certainly matters. It is whether the change would increase employee bargaining power. The purpose of increasing employee bargaining power was to improve the quality of work, and, ultimately, promote a fairer, more prosperous, more democratic society.

    Congress was impelled to pass the NLRA because the increase in power employers had, as a result of corporation and partnership laws, so skewed power toward employers that wages and working conditions had spiraled down and led to economic collapse.

    We have seen similar dynamics during the Great Recession with attacks on employee working conditions, and especially attacks on public sector employee wages and benefits – as well as through privatization. The ferocity of those attacks in recent years and the low percentage of union members raise concerns that the spiraling down of working conditions will lead to economic disaster. Desperate times seem to call for desperate measures.

    However, these days, most people have little to no first-hand knowledge of how the National Labor Relations Board operates or of the purpose of the law. Here, then, is a brief NLRA / NLRB primer.