• 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. 

  • 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.

  • September 5, 2011
    Guest Post

    by Marion G. Crain, the Wiley B. Rutledge Professor of Law and Director, Center for the Interdisciplinary Study of Work & Social Capital, at the Washington University School of Law

    Labor Day celebrates the historical contributions of the American labor movement to the lives of millions of working people. Today, however,unions are under siege. In the public sector, governors seeking to slash budgets are deauthorizing state labor laws that govern the organizing and bargaining rights of state employees. In the private sector, both the federal legislation that supports union action and the administrative body that enforces the law (the National Labor Relations Act and the National Labor Relations Board, respectively) are under attack. Union density is on a dramatic downswing. Are unions passé?

    Unions formed to challenge the dramatic wealth inequality between business owners and workers that characterized the nineteenth century social condition.  Most working families -- children, as well as adults -- labored under oppressive and dangerous conditions: seven days and sixty-plus hours per week, for pennies an hour, in workplaces with overtly dangerous conditions (the open flames in coal mines, for example, led to frequent explosions that maimed and killed many miners). Unions fought to change these conditions: to raise wages, to reduce hours, to enhance worker safety on the job. As they matured, unions partnered with the civil rights movement to battle entrenched racial segregation and discrimination in employment. Dr. Martin Luther King, Jr, a staunch union advocate, espoused a vision of racial equality that was premised on a call for economic justice. Indeed, King’s assassination occurred while he was in Memphis supporting a sanitation workers’ strike.

    Today, an array of statutes protects the vast majority of workers against such abuses.  Unions played a key role in obtaining such protections, and in defending them against political challengers. They raised workers’ expectations and encouraged them to demand to be treated with dignity, lobbied for legislation that would improve the standard of living for all workers, and litigate on behalf of workers for the most worker friendly interpretations of the law. The Fair Labor Standards Act (establishing a minimum wage and the right to overtime pay for hours worked in excess of 40 per week), the Occupational Safety and Health Act (establishing standards for safe workplaces), Title VII of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, sex, national origin and religion), and the Family and Medical Leave Act (offering job protection for unpaid medical and family-care-related leave) are among the many legislative achievements that would not exist without the advocacy of labor unions. 

    As valuable as it may be, the individual rights model outlined above leaves economic issues like living wages, job security, health insurance and pension benefits to individual negotiation. But individual workers are relatively powerless to negotiate with corporate employers who hold the purse-strings to desperately needed jobs, and many workers willingly sacrifice anything to get and keep a job. Unions, however, are able to capitalize on the collective strength of the group to negotiate collective bargaining agreements that guarantee job security and establishbenefit packages that include health insurance, pension coverage, vacation pay, and paid family leave. Once obtained, these important benefits are often extended across entire industries or sectors by employers competing to attract the best workers. Further, most workers lack the knowledge of their legal rights and the resources to challenge violations of rights guaranteed in individual rights statutes. Unions thus play an important role as watchdogs for workers’ rights, and are the most effective vehicle for extending those rights beyond the minimum floor prescribed by employment legislation.

    Thus, labor unions are widely credited with creating and sustaining a strong middle class in America. Autoworkers, steelworkers, coalminers, nurses, teachers, and many others enjoy a middle-class standard of living because of their collectively-bargained wage and benefit packages. 

  • August 30, 2011

    by Jeremy Leaming

    As conservative lawmakers and right-wing activists keep churning out attacks against the efforts of the National Labor Relations Board (NRLB) to enforce federal labor law, The New York Times talked with outgoing chairwoman Wilma Liebman about the origins of some of the Right’s vitriol.

    Liebman (pictured) tells the newspaper that attacks against the Board, which is charged with enforcing the National Labor Relations Act (NLRA), tend to be cyclical – depending on which political party is in power (the NLRB is an independent federal agency, but the president appoints members to the five-member board). She adds, however, that she believes the NLRA, enacted during the New Deal has never been fully accepted by many people. The NLRA, as Liebman points out, was intended to ensure that workers have the right to engage in collective bargaining and other actions to protect their rights against increasingly powerful corporations. Not surprisingly, the article includes comments from U.S. Chamber of Commerce deriding actions by the Board to safeguard workers’ rights. Recently the NLRB drew consternation from business groups when it ordered private employers to post information about workers’ rights to bargain collectively and form unions.

    Liebman defends collective bargaining as a major reason for the creation of the nation’s middle class, and as a tool to strengthen the economy.

    “If you increase workers’ purchasing power, that can create a stronger, more substantial economy,” she said.

  • August 9, 2011

    by Jeremy Leaming

    Rep. Darrell Issa (R-Calif.) has moved ahead with his effort to force the National Labor Relations Board (NLRB) to release even more documents regarding its case charging Boeing with violating federal labor law. Yesterday, the House Oversight and Government Reform Committee, chaired by Issa, issued a sweeping subpoena for all documents related to the Boeing case, which is now before an administrative law judge.

    Since lodging its complaint that Boeing moved production of its Dreamliner jet from its plant in Washington State to South Carolina in retaliation against workers in Washington for conducting strikes, the NLRB has come under withering attacks from lawmakers in Congress and right-wing activists. Some have suggested stripping the agency of its funding, or shuttering it, while others have pushed legislation to gut the agency’s ability to uphold provisions of the National Labor Relations Act (NLRA).

    Responding to the Committee’s action, Acting NLRB General Counsel Lafe Solomon said in a press statement, “To the best of my knowledge, this is the first time since 1940 that the National Labor Relations board has been the subject of a Congressional subpoena. I am disappointed and surprised by this development. For months, my staff and I have diligently tried to satisfy the Committee’s desire for information while also preserving the integrity of our process and the rights of the parties in a case being actively litigated.”

    The NLRB has also already released reams of material relating to the case, including posting its complaint against Boeing, along with other material, on its website.

    Issa (pictured), perhaps not surprisingly, was not moved by a recent letter from more than 30 legal and labor policy experts, urging the Committee to refrain from interfering with the case.

    “In our view,” the experts’ letter states in part, “independent federal law enforcers must be protected from undue interference by Congress. If the Committee continues to inappropriately interfere with this process, these serious charges of illegal behavior may never be properly adjudicated, thereby denying both parties the opportunity to tell their full story. Such a result would jeopardize our long held democratic principles and respect for the rule of law.”

    Earlier this summer, ACS hosted a teleconference briefing on the Boeing case. The call featured law professors James J. Brudney and Catherine Fisk, both of whom signed the letter submitted to Issa. Audio of the call is available here.  

    ACS Executive Director Caroline Fredrickson has also spoken out on the lawmakers’ actions surrounding the Boeing case. Fredrickson told Free Speech Radio News, “You’ve got a group of Republicans on the Hill who are trying to intimidate the National Labor Relations Board to make the decision based on what they want rather than doing the job they were appointed to do, which is to weigh the facts, look at the law, and figure out who is right in the particular case.”

    Democratic House members blasted Issa’s subpoena of the NLRB, warning that it appears to be part of a campaign to influence the legal proceeding against Boeing.  

    Rep. George Miller (D-Calif.), said the subpoena “threatens the integrity of an ongoing trial and the constitutional due process rights of the private parties involved in that trial. It ignores pleas from members of Congress and legal experts to be mindful of the line between proper oversight of an agency and improper interference with its proceedings. It is issued in the midst of troubling Republican attacks on the National Labor Relations Board and the workers’ rights that it enforces.”

    Rep. Dennis Kucinich (D-Ohio), a ranking member on the Oversight Committee, in a press release called Issa’s subpoena “part of a pattern to attack the due process rights of union employees for the obvious benefit of a private party – Boeing. It is unacceptable that workers’ right to legal recourse would be subverted by a Congressional action.”