Just hours after recess-appointing former Ohio Attorney General Richard Cordray to head the Consumer Financial Protection Bureau, President Obama recess-appointed three people to the NLRB (National Labor Relations Board), giving it a full complement of all five members for the first time in more than a year. The three new members are Sandra Block, Richard Griffin and Terrence Flynn. They join current members Mark Pearce and Brian Hayes. Block, Griffin and Pearce are Democrats; Flynn and Hayes are Republicans.
It’s hard to assess how much praise Obama deserves for making these moves. On the one hand, appointing members to the NLRB ain’t exactly a landmark achievement. After all, presidents have been appointing board members since 1935, when the NLRB was first established, so the “presidential act” of picking suitable people (it used to be three, until the 1947 Taft-Hartley Act expanded it to five) to fill out the roster shouldn’t be gushed over. It’s his job, isn’t it?
On the other hand—given that the Republicans despise any agency with the power to regulate business, given that they’ve fought for 75 years to defang the NLRB, given that they’ve purposely tried to keep it understaffed (aware that two members don’t constitute a quorum and, therefore, don’t have the authority to issue rulings), and given that, even with a 53-47 senate majority ready to approve Obama’s appointees, they’ve threatened to filibuster any nominee—it was a bold move. Bold, necessary, and, let’s be honest, way overdue. Credit goes to organized labor for keeping the president’s feet to the fire. That reported $400 million they donated to the Democrats in 2008 finally bought them something.
What the Republicans characterize as “interfering with” and “restricting” business, the NLRB views as providing employee safeguards—safeguards expressed in our federal labor law. For example, when people get fired illegally for engaging in union activism, or when a workforce formally requests a union election but is denied, or when the management negotiating team refuses to bargain in good faith—that’s when the NLRB (in principle) comes to the rescue.
Although congressional Republicans are already threatening legal action and issuing hysterical statements (Wyoming Senator Mike Enzi referred to the appointments as a sign of the White House’s “contempt for America’s small businesses”), there’s not much they can do about it, which means the NLRB, at least through 2012, is going to have a fair amount of latitude in addressing workers’ rights.
And one major area of concern will be union membership drives. According to surveys, upwards of 60 percent of American workers have expressed an interest in joining a union, attracted by across-the-board advantages in union wages, benefits and working conditions. But national membership stands at barely over 12 percent. While part of that differential can be traceable to the unreliability of surveys, the real culprit is management’s ability to keep its employees from joining up by using its two favorite weapons: stalling and intimidation.
There are hundreds (thousands!) of documented cases of companies illegally attempting to dissuade their workers from joining a union. They threaten, they lie, they bully, they bribe, they spy, they hire outside agencies to assist them. I knew a retired woman who, on a whim, decided to take a part-time job at Wal-Mart to augment her pension. She said she was blown away by the level of anti-union propaganda. As a new employee, the first order of business was being shown a 45-minute movie on the evils of labor unions.
Without the FDA (Food and Drug Administration, formed way back in 1906), one can imagine the sort of liberties that would be taken by manufacturers looking for shortcuts and angles. The same applies to the NLRB. Without the labor board acting as a clearing house for employee complaints, there would be no workplace justice. Without the NLRB, we would see the rise of “employer tyranny.” Indeed, many would argue that we already see it….even with the board. Clearly, it’s an uphill battle.