To recap: In January 2012, with the NLRB about to lose its quorum, President Obama appointed Democrats Richard Griffin and Sharon Block, along with Republican Terrence Flynn – who later resigned after the NLRB Inspector General found that he had committed serious ethics violations -- through recess appointments. Soon after, 42 GOP Senators and several anti-union organizations mounted legal challenges against the appointments. Republicans had been holding pro-forma sessions in an attempt to prevent the President making recess appointments to the board. The courts have yet to rule in the legitimacy of these appointments.
Wszolek has apparently forgotten why these recess appointments were necessary in the first place: GOP Senators had vowed to block the president’s nominees to the board, just as they had blocked his earlier nomination of union lawyer Craig Becker. In April 2010, Obama appointed Becker through a recess appointment after GOP Senators refused to allow a vote on his nomination, even though the Senate had voted to confirm pro-union and pro-management nominees many times in the past. Discussing the NLRB’s anticipated loss of a quorum, Sen. Lindsey Graham (R-S.C.) stated in December 2011, “Given its recent actions, the NLRB as inoperable could be considered progress.” Thus, the extreme obstructionism of the GOP Congress – not excessive partisanship at the labor board – is responsible for the current stalemate over NLRB confirmations.
Kovacs correctly point out that the practice of appointing board members who come from management and labor backgrounds started with President
Eisenhower. In the 1930s and 1940s, many board members were academics or career civil servants, not management or labor officials, and often social
scientists rather than lawyers. But since the 1950s, the practice has been that of appointing a majority from the President’s party, meaning that decisions under a Democratic Administration often favor workers, while those under a GOP Administration favor employers.
More important than the “pendulum swing” in board decisions are court rulings that have significantly constrained the influence of the NLRB. These decisions have overwhelmingly favored one side only—the employer side. On almost every major issue – employer “free speech rights,” property rights, the use of public money for anti-union campaigns, and so on — the courts have ruled that employers’ individual rights trump workers’ collective rights. As a result, most of the actions taken by the NLRB under Democratic administrations are simply tinkering around the edges of our labor policy. While the proposals of the current board are commonsense and moderate changes, they will do little to restore workers’ fundamental right to form a union.
Ultimately, the right does not hate the NLRB because of any particular actions of the current board or previous boards. The reason that conservatives hate the NLRB is that they no longer believe in the rights protected by the board. The GOP and its anti-union allies are content for workers to have the right to organize and bargaining collectively on paper so long it is virtually impossible for them to exercise those rights in practice.
And they have all but succeeded. Hostile employers enjoy a virtual stranglehold over the current system of union certification. This is why NLRB elections have fallen to record low numbers – many unions believe that the system is so heavily weighted in favor of employers that they have abandoned it altogether. It is also why the “representation gap” -- the gap between those who have union representation and those who want it -- is higher in the U.S. than it is in any other advanced democracy. The U.S. now has tens of millions of workers who want union representation but because of weak legal protections and strong employer opposition cannot get it.
Kovacs and Wszolek are correct about one thing: the current NLRB system is not working. Unfortunately, the solutions they offer would further weaken
labor rights and further impoverish American workers. The only solution that will rebuild our economy and revitalize our middle class is to strengthen labor rights and restore Americans’ voice at work.
Logan is professor and director of Labor and Employment Studies at San Francisco State University.