On January 25, labor unions in the United States were dealt a major blow. The D.C. Circuit Appeals Court — the second most powerful court in the country and one closely aligned with the Supreme Court — handed down a decision declaring President Barack Obama’s recess appointments to the National Labor Relations Board invalid, which will likely nullify the rules and decisions of the NLRB in the past two years. Because the Senate is unlikely to approve any appointments in the next two years, labor unions are left with effectively no legal recourse against employers for the foreseeable future.
Unions spent hundreds of millions of dollars on both the 2008 and 2012 elections, and securing a functional National Labor Relations Board was one of the main reasons. The board, established in 1935 to mediate and arbitrate labor disputes, is the central federal agency that enforces laws related to unions, with its stated goal being to promote collective bargaining. Over the past few years, the NLRB has taken some significant actions, most notably preventing Boeing from punishing its workers by shifting work from Washington state to South Carolina, where laws are less amenable to organized labor. It also announced a new rule requiring employers to have a poster in every workplace that informs workers of their rights to collectively bargain under the National Labor Relations Act, just as they are required to inform employees of their rights under the Civil Rights Act of 1964, the Fair Labor Standards Act, the Occupational Safety and Health Act, and the Americans with Disabilities Act. Now these gains are in jeopardy.
While the NLRB has generally served to protect labor organizing, it can also sanction unions for violations of often technical and restrictive labor laws — most notably Section 8(b) of the National Labor Relations Act, which among other things prevents unions from targeting employers for longer than 60 days. This resulted, for instance, in the recent NLRB-arbited settlement between the union-affiliated worker center OUR Walmart and Walmart stores, which requires OUR Walmart to stop picketing for two months.
According to labor lawyer Joe Burns, this settlement demonstrates that the NLRB never should have been viewed as a panacea for the labor movement. “It’s pretty clear even before this decision that the NLRB doesn’t provide meaningful protection for workers,” he said. “It’s crystal clear that we can’t rely on the NLRB, so any illusions that we could — this should dispel them.”
With a federal judiciary that draws almost exclusively from the ranks of corporate lawyers and prosecutors — two of the most anti-labor realms of the legal profession — one must wonder about whether even a normally functioning board could uphold its mandate to promote collective bargaining.
Burns added, “The question we need to ask as a labor movement is this: should we rely on this process or do we have to use some other tactics?”
The National Labor Relations Act was initially passed in 1934 in the face of a colossal strike wave that included citywide general strikes in San Francisco and Minneapolis. The goal was progressive — to promote collective bargaining — but at the same time it was a compromise made by a capitalist class determined to achieve a semblance of industrial peace. By having a state-sponsored framework for negotiating working conditions, employers would be able to avoid debilitating strikes and enjoy greater productivity.
Union membership as a percentage of the workforce today, however, is the lowest in 76 years — almost as long ago as when the law was passed — and the conditions of the historic compromise that created the NLRB aren’t in place anymore, thanks to a confluence of trends: increased automation, foreign trade, growing employer resistance, and the decline of pro-labor institutions like the NLRB and the Department of Labor. But the question now becomes what unions need to do to — at the very least — stop hemorrhaging workers.
Many unions have adopted new strategies in the face of this decline, with both the Walmart campaign and a broader strike-first strategy. These approaches are less dependent than more traditional ones on structures like the NLRB. But almost everyone in organized labor agrees that a non-functioning NLRB is still bad for unions and workers. Chris Rhomberg, a professor at Fordham University and the author of the 2012 book The Broken Table: The Detroit News Strike and the Decline of American Labor, insists that the National Labor Relations Act still offers important protections for workers, despite the restrictions it places on unions.
“I think the Walmart settlement highlights that the NLRA is really contradictory now,” he said. “The people who attempt to carry out the goal of the law — the promotion of collective bargaining — find themselves very constricted.” But, he added, “I think it’s also true that we can’t pretend that it’s not there.”
Kate Bronfenbrenner, director of Labor Education Research at the School of Industrial and Labor Relations at Cornell, believes that the onus is on unions to get the NLRB functioning again.
“Labor’s response should be to keep on aggressively organizing without the board,” she said. “If unions file unfair labor practice charges every time they see them, and keep striking and doing the kind of the things where the employer wants to get injunctive relief, employers and Senate Republicans will realize that they need the NLRB. There needs to be a lack of industrial peace.”
Chris Townsend, an international representative for the United Electrical Workers union, suggests that it’s not just Republicans who pose an obstacle in Washington. He asked, “Are we also going to include the question of whether or not we are going to reevaluate our relationship with the Democratic Party? Or are we going to realize that the Democratic Party is too compromised, so we think about developing an independent political movement?”
It is true, the Democratic Senate failed to take up the limited labor-law reform advocated by unions in 2008 and 2009 — the Employee Free Choice Act — and the reason that Obama had to make recess appointments to the NLRB in the first place is that Democratic Sen. Harry Reid failed to move the appointments to the floor. Ostensibly, the Democrats’ rationale was Republican intransigence, but the Democrats also had a 20-seat supermajority in that body. Meanwhile, Democrats in Congress have failed to release nary a peep of opposition to the administration’s “Race to the Top” program, which has led to significant restrictions in the ability of teachers and school employees to collectively bargain.
For now, most unions seem to be awaiting the results of the inevitable Supreme Court appeal of the January 25 decision. But in in light of the court’s 7-2 anti-labor ruling in June 2012, it seems unlikely that it will be sympathetic. Joe Burns thinks that organized labor should use this opportunity to expand the ground for new tactics — and potentially for an entirely new modus operandi in the labor movement.
“I think unions are coming up with creative strategies to try and address the decline of unionism,” he said. “But it’s hard to see a strategy that doesn’t in some form involve violating labor law. I think that’s the big question we as a broader labor movement have to address.”
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