The National Labor Relations Board was created in the throes of the Great Depression as a federal strong arm to keep corporations from exploiting workers. Eighty years later, with America struggling to recover from the Great Recession, the board's relevance in adjudicating unfair labor practices is being tested as never before.
For one thing, some Republican presidential candidates are vowing to abolish it or refashion it, as are many congressional Republicans. For another, the NLRB deals only with complaints from unionized private-sector workers, who now make up only 7 percent of the private-sector work force.
The challenges to the board come even as the Occupy Wall Street movement rails against perceived worker injustices and President Obama's NLRB appointees try to raise the board's profile. The most direct one yet came Wednesday, after the three sitting members of the five-seat board voted 2-to-1 to move a proposal that would fast-track votes to unionize – what critics call “ambush” unionization – to give companies less time to mount legal or public-relations campaigns against unionization. Almost immediately, the Republican-led House of Representatives approved a bill to negate fast-track unionization – though the vote was largely symbolic, as the Democratic-led Senate is unlikely ever to let the measure see the light of day.
The House vote is the latest of several attempts to defang the NLRB in the eight months since the board's general counsel, Lafe Solomon, filed suit against Boeing Co., alleging the aviation giant opted to locate part of its Dreamliner assembly line in South Carolina, a right-to-work state, in retaliation against unions for a series of strikes.
The House had already voted to curtail the NLRB's purview, with Republicans railing that the board's actions are hamstringing the economy. Another bill, the National Labor Relations Board Reorganization Act of 2011, would reorganize the agency into extinction by handing its authority to the Justice Department.
More immediately, the board faces a de facto shutdown by year's end. Brian Hayes, the Republican appointee, is threatening to resign, there's little hope new appointees will be get cleared before one member's term expires Dec. 31. (If the NLRB has fewer than three board members, it cannot conduct official business.)
Republican opposition to the NLRB “isn't some tinkering … it's about ending this agency,” Rep. George Miller (D) of California warned board supporters Wednesday at a Washington forum hosted by the AFL-CIO.
Other big labor news may make moot the NLRB's pursuit of Boeing. On Wednesday, Boeing and its machinists union advanced toward a new contract, hinged upon the workers dropping their complaint to the NLRB. And a looming strike by railroad employees – which could hamper Christmas shipments – is being mediated by another federal agency. Republicans have said they'll pass legislation to keep rail workers from striking if a deal isn't reached by Dec. 6.
Today's labor battles in Washington are “largely symbolic” because the real battles over union rights have moved to the states, says Colin Gordon, a labor historian at the University of Iowa in Iowa City. Republican governors and GOP-led state legislatures are pushing to curtail bargaining rights for public-sector workers, who now represent the bulk of unionized employees in the US and whose plight lies outside NLRB purview. That battle continued Wednesday in New Hampshire, where Republican lawmakers failed to override Democratic Gov. John Lynch's veto of a right-to-work law.
The NLRB has faced extinction before. Originally part of the National Industrial Recovery Act of 1933, which allowed the president to regulate industry, the Labor Relations Board disappeared when the US Supreme Court struck down the law as unconstitutional. The NLRB was resurrected in 1934 by executive order.
More recently, the board has struggled to operate. Political battles during the Bush administration left it with only two members, whose votes were nullified by the US Supreme Court in 2010, which ruled that two members did not a quorum make. What's more, its general counsel, who initiates legal actions like the one against Boeing, has yet to be formally approved by the Senate.
Republicans say their attacks on the NLRB are actually counterpunches – attempts to gain congressional control of what Rep. John Kline (R) of Minnesota called “a blizzard of regulations … coming from virtually every department and agency.”
For now, the NLRB's future is cloudy, in both the near term and the far term.
“The Obama administration has said to agencies like the NLRB, 'If you guys could actually operate as your charter says, what would you do differently?' and [the proposed reforms] we're seeing now are attempts to … look at what they can do better,” says John Revitte, a labor expert at Michigan State University, in East Lansing. “Normally these would be inside-baseball-type issues, but they've gotten caught up in a very serious and important election cycle ... that relates to questions about how America looks at work.”