The Chamber of Commerce and influential management law firms are encouraging employers to challenge the Board at any point in the proceedings, rather than wait for an adverse decision, and to question the authority of at least 10 NLRB regional directors appointed by the Board. Firms that have cited Noel Canning to take on the Board include Starbuck, McDonald’s, CNN America, LabCorp, and Domino’s Pizza. But employers of all sizes are challenging the Board and resisting its enforcement orders, and Republicans contend that the Noel Canning ruling invalidates all future decisions that the current Board might make.
Congressional Republicans have claimed that Board has “gone rogue” by adopting a radical pro-union agenda, but the actual evidence suggests otherwise. When President Obama first took office, the Chamber of Commerce commissioned a management law firm to report on what to expect from the new Board. The firm predicted that it would reverse at least twenty important decisions made by its predecessor; so far it has reversed only four of these twenty. And the Board’s actions in other areas have been similarly unremarkable. The high-profile Boeing dispute was settled long before it reached the national Board. And the Board’s two attempts at rule-making – requiring employers to post notices and streamlining union elections, both of which would be considered moderate proposals in any other developed democracy – are currently being held up in the courts.
Collegiality among Democratic and Republican Board members has broken down, but that is largely the result of the poisonous external political environment. For the past three years, Congressional Republicans have relentlessly attacked the Board, attempting to discredit, defang, defund, and destroy both it and the rights it enforces. Appointments to the NLRB were never intended to be a battleground, but the anti-union extremism of the GOP has turned them into one. Republicans filibustered the nomination of former AFL-CIO lawyer Craig Becker in 2010, and then vowed to block the future nominations and keep the Senate in session, via phony pro-forma sessions, to prevent recess appointments. This is why the President was forced to make the January 2012 recess appointments in the first place.
But the current conflict is not over the validity of the recess appointments; if it were, Republicans would be lining up to defend the warped reasoning of the DC Circuit’s sweeping decision. It is not even about the alleged “hyper-partisanship” of the current Board; in private, Republicans know that this Board is no more partisan than previous Republican Boards and that “policy oscillation” at the Board is routine when a new Administration assumes office. Rather, the real reason that Republicans and their allies want to destroy the NLRB is that they no longer believe in the fundamental workers’ rights that the agency is charged with enforcing.
Employer obstructionism in the wake of Noel Canning means that workers’ rights are being violated with no clear legal recourse. Employers are, among other things, attempting to block or overturn the results of union elections, and are refusing to reinstate and pay workers who have been fired illegally.
The NLRB is correct to request Supreme Court review of the D.C. Circuit’s outrageous decision. Noel Canning is a tour de force of textualism. The D.C. Circuit apparently cares nothing about a century of past practice or about the real world consequences of its decision, which is just as well because empowering the Senate to unilaterally eliminate the President’s recess appointment authority, even when it is unavailable to advise and consent, makes no practical sense.
But American workers cannot wait for over a year for basic justice. President Obama and Senate Democrats must overcome Republican obstructionism and act quickly to confirm the President’s nominees to the Board. If they fail to do so, the GOP may finally succeed in killing off not only the labor board but also the rights it enforces.
Logan is professor and director of Labor and Employment Studies at San Francisco State University.