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THE PROGRESSIVE REVIEW - January 28, 2010
Labor's Big Election Loss
by: Dick Meister
truthout|News Analysis
The Senate Democrats' loss of a filibuster-proof, 60-vote
majority seems almost certain to doom attempts to revive
the barely functioning National Labor Relations Board
(NLRB), the country's chief labor law administrator and
enforcer.
That, along with its effects on health care reform, is
certainly one of the most serious consequences stemming
from the election of Massachusetts Republican Scott
Brown to the seat formerly held by the late Ted Kennedy.
For more than two years, the five-seat NLRB has limped
along with only two members, a Republican appointee of
President George W. Bush and a Democratic appointee of
President Bill Clinton. The other three seats had been
held by Republicans, but were vacated when their five-
year terms expired. Democrats, who by then controlled
the Senate, refused to confirm the anti-labor Republicans
that Bush nominated to replace them.
The two-member board has decided cases involving minor,
noncontroversial issues, but invariably has split one to
one on major cases or simply decided against hearing them.
That's left many important issues unresolved, and left
both labor and management frequently unsure of what they
should do.
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Should employers be allowed to prohibit workers from
using the employers' email systems to send union related
messages, for instance? Just where on an employer's
property can union organizers be allowed to distribute
literature and talk to workers? Which workers can
legitimately be classified as supervisors and thus
ineligible for union membership? At what point does
employer opposition to their employees' attempt to
unionize become intimidation?
Dozens of NLRB cases that the board has decided have been
appealed to the federal courts, on grounds that they
weren't decided by a full board. Which raises the
possibility that at least 80 of the 480 cases decided by
the two-member board may be invalidated.
Several circuit courts ruled in favor of the two-member
decisions, but the Circuit Court in Washington, DC, held
otherwise. The Supreme Court has agreed to make the final
ruling, but, meanwhile, legitimate grievances of working
people and their unions remain unsettled, often at a great
hardship to the workers.
Some workers have waited years for the board to act.
Workers at a home for the developmentally disabled in
Brooklyn, for instance, have been waiting six years for
the NLRB to certify their disputed vote to unionize.
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The board's inability to make decisions has been especially
hard on workers who've been fired illegally and seek
reinstatement or back pay, as the law allows.
It could be worse, though much worse, as it was when Bush
appointees controlled the board. As the current NLRB chair,
Clinton appointee Wilma Liebman, noted, "The board lost
its credibility." The number of cases brought before it
dropped by half as the Bush administration "turned labor
law inside out and missed opportunities to make the law
more effective."
The Bush-controlled board limited the ability of illegally
fired workers to recover back pay, allowed employers to
discriminate against union supporters in hiring, and made
it much harder to form unions.
President Obama, who appointed Liebman as NLRB chair, has
moved to bring the board up to its full compliment of five.
But that's been delayed because of heavy opposition from
Senate Republicans led by John McCain of Arizona and two
of the GOP's powerful corporate allies, the notoriously
anti-labor US Chamber of Commerce and National Association
of Manufacturers.
One of the opponents' biggest worries is that an Obama
majority on the Labor Board would put into law, through
its decisions, provisions of the Employee Free Choice Act
that GOP lawmakers have long kept from passage because
it's designed to overcome the principal obstacles to
unionization.
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Chief among Obama's Labor Board nominees is Craig Becker,
an associate general counsel for the AFL-CIO, Service
Employees International Union and American Federation of
Government Employees.
Democrat Tom Harkin of Iowa, who chairs the Senate Labor
Committee, ranks Becker as "one of the pre-eminent labor
law thinkers in the United States."
It's highly unlikely nevertheless that either Becker's or
Obama's other nominees will win Senate confirmation. The
GOP senators and their anti-union allies fear that Becker
would join Liebman to actually carry out the stated, but
frequently ignored, mandate of the National Labor Relations
Act that unionization should be encouraged.
America's working people need and deserve nothing less.
But as long as Republican lawmakers stand in the way,
they aren't going to get it.
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