Senate Must Confirm NLRB Nominees Now to Protect Workers, Economy

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. 

Predictably, companies are flocking to the D.C. Circuit where NLRB cases are being held in abeyance pending resolution of Noel Canning. Thus, unlawfully terminated employees remain out of work without back pay, and orders to bargain go ignored. In short, it is as if the National Labor Relations Act (NLRA) were repealed indefinitely.

In addition to the growing backlog, the need for confirmations is also urgent because of our fragile economic recovery. Unless employees’ rights are protected, we risk another economic downturn. The preamble of the NLRA warns that without securing employees’ right to organize and collectively bargain, the inequity between employees and employers “tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners…” 

Indeed, the threat of stagnant wages is just as relevant today as when the Act was passed in 1935, only the employees are now behind cash registers rather than in a factory. The Great Recession shifted many employees from middle income jobs into low-wage service sector jobs. Moving so many employees into low-wage jobs reduces overall purchasing power, in turn stalling economic growth.

Recent strikes in the retail and fast food industries demonstrate the urgency for our labor laws to be enforced so that wages will rise. Raising wages of the lowest paid workers boosts the economy because they are the most likely workers to buy things they need.

Thousands of employees are waiting for the remedies they are owed in the growing backlog of cases, and employees in places like Wal-Mart and McDonald’s are counting on the government to protect their legal rights as they organize for higher wages. Without securing employees’ rights to organize, the stagnation of wages threatens our economic growth. Senate must confirm the president’s nominees to the NLRB immediately to protect employees and the future of our economy.

[image via Lady Buffalo]