Congress Must Rein in the NLRB | Commentary
Since the 2010 midterm elections, a split Congress effectively froze the most controversial elements of the president’s political agenda. As a result, implementation of Barack Obama’s labor agenda, like other priorities, quietly moved from Capitol Hill to federal agencies unleashing an avalanche of administrative law. On the labor policy front, the president can also rely on the quasi-judicial body the National Labor Relations Board to implement his agenda, and after a period of prolonged battles over appointments to the board, for the first time in a decade, a fully seated NLRB is frantically making up for lost time.
Even in the president’s first two years, when his party controlled both houses of Congress by historic margins, the cornerstone of the president’s labor policy wish list, the Employee Free Choice Act, failed in dramatic fashion. While in the Senate, Obama had been a co-sponsor of the bill commonly known as “card check,” and vowed on the campaign trail to deliver its passage. For congressional Democrats at that time, this union agenda item was simply too radical. When it failed, the president was forced to shift to other priorities, chiefly Obamacare. Stymied by his own party in Congress and subsequently a Republican-controlled House, he turned to his top appointee at the Labor Department, first Hilda Solis and now Thomas E. Perez, who transformed the agency into a fierce adversary of employers and an ally to both unions and their worker center offshoots.
While the Labor Department is limited in the breadth of change it can pursue, the NLRB has much more room to run. Six years into the president’s term and with little systematic “reform” to labor law, the NLRB’s actions over the next two years may define president’s legacy to organized labor. The president’s appointees view U.S. labor law as favoring employers over labor, and consider the legal framework governing unions as an antiquated relic crafted for a bygone American economy. Forty plus years into membership decline, it’s also begun to dawn on union bosses that maybe the union model itself is a relic of a bygone era.
From ambush elections to micro unions and now the use of company email systems, the NLRB is succeeding where EFCA failed by systematically lowering the bar for union organizing campaigns and creating the space for unions to test alternative non-profit worker center organizing models outside traditional trade union representation. The recent joint-employer decision demonstrates appointee’s willingness to rewrite 30 years of established legal precedent simply to facilitate ongoing organizing efforts. This episode is part of a larger effort to assist labor organizing in “fissured industries” which will also manifest itself in the upcoming Browning-Ferris case.
To date, one of the primary backstops against the most radical elements of the president’s agenda has been the U.S. Court of Appeals for the D.C. Circuit, but the president has now successfully packed that court with his appointees. Republicans seizing control of both houses couldn’t have come at a more critical time. Congressional options to curtail the NLRB’s authority are limited and primarily tied to funding, and the Republican leadership will need to act deftly if it hopes to curb the NLRB’s ambitions.
With even former Clinton-appointed former NLRB Chairman Bill Gould “mystified” by some actions of the NLRB, there is broad consensus that the once neutral arbiter of labor law has become a political ax, and the only one left for a president short on time to reward the untold hundreds of millions of dollars, and probably more than a billion dollars, unions have spent to support his political career. Whether its Lauren McFerran’s appointment in the lame-duck session or appropriations riders in the next Congress, the time has come for Congressional Republicans and moderate Democrats to stand as they did against “card check” with Main Street employers against the radical agenda being carried out by the NLRB.
Ryan Williams is a senior adviser to Worker Center Watch and a former spokesman for Republican Govs. Mitt Romney and John Sununu.