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.
We have to do our part to save the NLRB, even though our weak labor law is at least partly responsible for union membership’s 97-year low, the worst since 1916. Candidly, there's plenty of deserved criticism of the NLRB from within labor, due to decades of weak law enforcement and poor remedies. But not for lack of trying. The Board can only do as much as it has been allowed to do, and now they’re trying to prevent it from functioning at all. Next week’s headhunter hearings may be the final kill stroke, the coup de grâce after decades of keeping the Board down.
Back to next week's Senate hearings -- challenging Obama’s labor board nominees is a move on the partisan chessboard, a skirmish in the larger war against the power to appoint and the bigger, cosmic attack on the president. But to working people, preventing the Board from functioning is way too serious for gamesmanship at the thousand-foot level. Without a labor board, workers will lose a vital defender. Labor and management alike won't be able to resolve legal disputes. The rule of law intended to dignify the human right to speak up and organize will be hollow and meaningless.
The NLRB has exclusive jurisdiction over enforcement of the NLRA. Destroying the agency creates a constitutional crisis. Without a labor board, what are rights which once had but no longer have remedies? What is a law when its built-in, exclusive enforcement is taken away? True, not all rights have remedies; but the NLRA is built to be enforced. Will workers and their unions go to court to sue for enforcement? Will the crisis become moot when the Supreme Court decides? Or suppose the Court keeps out the labor appointees, and the Senate confirms only the management nominees?
[image via Lady Buffalo]