Republicans have accomplished what Democrats and unions never could: they’ve made the National Labor Relations Board a household name. The NLRB, which in the Bush era churned out anti-union rulings in obscurity, now stars in stump speeches, Congressional hearings and TV ads. The day after the Iowa Caucus, Mitt Romney launched a South Carolina TV ad condemning the NLRB as “stacked with union stooges selected by the president.” He lost the state to Newt Gingrich, who promised South Carolinians that he would seek to unilaterally eliminate the agency.
On New Year’s Eve, labor was bracing for the NLRB, which interprets and enforces labor law, to be rendered comatose for 2012. An expiring appointment was set to leave the board one member short of a quorum, and thus unable to rule on any cases. Senate Republicans had promised to prevent any new appointments. But Obama acted to keep the agency’s lights on, making three new NLRB recess appointments in defiance of Republican claims that the Senate was in session.
With Obama’s re-election uncertain and pro-labor legislation stillborn, the NLRB’s actions this year may represent the last chance for years at improving the legal regime facing workers seeking to extract a measure of justice from the 1 percent. Obama’s appointees did enough last year—investigating aerospace giant Boeing, modestly reforming union election rules, reversing some Bush precedents—to guarantee the hatred of the anti-union right. But labor and its advocates will judge the board on whether it seizes three key opportunities over the coming year.
First, there are workers across America waiting for the NLRB to remedy alleged crimes by their employers. One of these workers is Elvis Alvira, a Long Island technician who says he began organizing a union at T-Mobile after a manager’s favoritism forced him to work an hour away from his house while his wife was at home coping with a high-risk pregnancy. Alvira and the majority of his fifteen co-workers filed a petition with the NLRB last May seeking to join the Communications Workers of America.
T-Mobile responded with a series of legal challenges that postponed the election for months. Alvira and the CWA say that delay bought the company seven months to run a classic anti-union campaign: mandatory anti-union meetings, raises and promotions to sway ambivalent workers, and firings of union supporters. In December, CWA lost the election. “The anti-union campaign the company put together, along with the eight months waiting for the doggone election, is really what killed it,” says Alvira. “That whole process, it’s broken…. They were able to play the NLRB.”
In cases like these, time is on management’s side—discouraging pro-union activists, distracting their co-workers and lending ill-gotten employer victories the air of legitimacy. Under normal circumstances, the NLRB’s process is painfully slow, but its backlog swelled after a 2010 Supreme Court ruling threw out hundreds of decisions reached when the board had only two members, forcing the current board to take them up again. To expedite the process, the NLRB could make greater use of its injunction power, which forces faster resolution of urgent misconduct. In January, the board issued its first injunction of the year, against Renaissance Equity Holdings LLC, owner of an apartment complex in Brooklyn that was accused of illegally locking porters and handymen out of their jobs. But there are hundreds of such cases waiting for NLRB judgment. CWA President Larry Cohen says Obama’s appointees “need to put themselves in the shoes of these workers,” and clear the backlog, even “if they have to work day and night.”
Second, labor is looking to the NLRB to continue exercising its power to issue new rules governing union elections. The board began this process last year. Labor advocates have long charged that companies use spurious legal challenges to buy themselves time for union-busting. Under new rules effective this April, many such challenges will be heard after the voting rather than before. This modest reform passed only after the Democrats on the NLRB withdrew other proposed changes, and only after a Republican NLRB member withdrew his threat to resign and deny the board a quorum.
In a January interview with the Associated Press, NLRB Chairman Mark Pearce announced his intention to revive other proposed election changes left on the cutting-room floor last year. Among these remedies is a requirement that employers provide more employee contact information to unions—including e-mail addresses—and provide it earlier in the process. Even with last year’s changes, former NLRB General Counsel Fred Feinstein says the process is “not balanced, because employers have hugely more access to the workforce.” Putting more employee info in unions’ hands, and sooner, would be one step towards addressing the imbalance.
Third, like the Supreme Court, the NLRB’s rulings on precedent-setting cases determine what labor law means: what it protects, what it prohibits and to whom it applies. How the board handles some of the cases in front of it this year will help determine the relevance of the NLRB—and the law it enforces—in a twenty-first-century economy where employment relationships are often opaque or indirect. Graduate student employees at New York University, who do a substantial portion of university teaching but were ruled to be non-workers by George Bush NLRB appointees, petitioned in 2010 for an election to win back union recognition. Similarly, airport shuttle bus drivers have asked the board to reject their employers’ claims that they are “independent contractors” ineligible for unionization. Historian Jennifer Klein says these cases illustrate a trend: “Fewer and fewer workers are considered to be employees” covered by many NLRB protections. Thus the right Elvis Alvira exercised—to force a union election by signing up his co-workers—doesn’t exist for a growing number of Americans. Pro-labor rulings this year could reverse that trend.
Whatever the NLRB does, Republicans will keep attacking it. Congressman Elijah Cummings, the ranking Democrat on the House Oversight Committee, says Republicans “have tried to use every kind of leverage that they could think of” to weaken the NLRB. That includes blocking its appointments, threatening its budget, and demanding its internal documents. Cummings says the Board is “more vulnerable” as a result.
That’s smart politics, says University of Texas professor Julius Getman, because it allows the GOP to frame an assault on workers as a move against “big government.” Feinstein, who was the NLRB’s top prosecutor under President Clinton, says such attacks are also effective at discouraging Democratic appointees and career staff from acting in defense of workers. “People become concerned…,” says Feinstein. “People are shaken by that, and we felt like that caused people to sort of pull in their wings a bit.”
Continued right-wing fury at the NLRB is certain, and it will remain white-hot until Republicans return to the White House and ratchet the board back to the right. In the meantime, Obama’s new appointees face a choice: be cowed by right-wing hatred, or do something to earn it.