Talking about a new company policy around the water
cooler, discussing wages with colleagues on Facebook, or trying to join
together with co-workers to form a union are among the many work-related rights
in jeopardy. This is because if employers retaliate against workers and fire or
otherwise discipline them for exercising these rights, only the NLRB—the
independent government agency with exclusive jurisdiction over these types of
unfair labor practices—can require these employers to reverse the penalties,
reinstate workers, and pay workers for lost wages.
In short, the NLRB protects workers’ rights to join
together in unions and collectively bargain, and it helps non-union workers by
protecting their right to speak up about workplace problems without fear of
employer retribution.
If the Senate fails to act soon, however, the NLRB
will be rendered largely inoperable, as the board will lack the quorum it
requires to function. This would mark an incredibly rare occasion, as the NLRB,
over the course of its nearly 78-year history, has rarely ever had to cease
issuing decisions due to a lack of a sufficient number of board members, and
all previous hiatuses together totaled only a matter of months.
To some degree, the NLRB nominees are caught up in
the larger dysfunction of the Senate, where Senate Republicans frequently
stall, delay, and obstruct Democratic Party priorities via filibusters and
other tactics, as Democrats did when they were out of power, though to a far
lesser degree.
But these NLRB nominations are special for two
reasons. First, this obstructionism is part of a larger pattern of activities
that congressional Republicans have taken to undermine the board, including
effectively filibustering previous nominees, attempting to slash federal
funding for the agency, interfering with ongoing investigations, and trying to
block efforts to modernize worker-protection regulations. Indeed, in 2011 Sen.
Lindsey Graham (R-SC) even stated, “I will continue to block all nominations to
the NLRB. … The NLRB as inoperable could be considered progress.”
Now the NLRB is down to just three members instead
of the five it is supposed to have. On August 27, when the term of NLRB Chairman
Mark Gaston Pearce comes to an end, the board will be left with only two
members, one short of the minimum required to operate. As established by the
Supreme Court in 2010, the NLRB can only legally function if at least three of
the five positions on its board are filled.
And that leads to the second way that these NLRB
nominations are different: The NLRB is not like many other agencies, which,
when deprived of Senate-confirmed leadership, can continue to function by
delegating responsibilities to existing staff. While some agencies can muddle
through Senate inaction hindered but not hobbled, the NLRB needs a functioning
board for many basic activities.
The General Counsel of the NLRB—the body’s
independent chief attorney in charge of investigating and prosecuting unfair
labor-practice cases—will still be able to issue and prosecute complaints
before administrative judges and oversee most representation elections, but the
board itself will no longer be able to issue decisions affirming or overturning
judges’ rulings. The board will also be incapable of hearing appeals concerning
representation elections, issuing new regulations, or seeking court orders to
compel compliance on the part of employers it has previously found guilty of
unfair practices.
This effectively means that the worker protections
guaranteed by the National Labor Relations Act of 1935 will become largely
unenforceable, since parties who do not like the finding of an administrative
judge or outcome of a representation election can simply appeal the decisions
to the NLRB, where they will sit and wait indefinitely because of the lack of a
legal quorum. Workers will therefore be left with no effective recourse for
violations of their basic rights.
Among the rights in jeopardy are all forms of “concerted
activity,” which are actions that two or more employees take together—whether
as part of a union or not—to address issues such as improving their pay or
making their workplace safer. Workers talking about how much they get paid,
meeting to discuss how unsafe their working conditions are, sharing information
about their workload or salary with other employees on Facebook, or putting
together a petition to oppose a pay cut will all be at risk. While many
employees may take the right to engage in such activities for granted, without
a functioning NLRB, little would stand in the way of employers who wish to fire
workers for exercising these rights.
When the NLRB is properly functioning, however, it
can be an important advocate for American workers. Since fiscal year 2001
alone, the board has issued more than 5,400 decisions on contested cases,
offered more than 26,000 workers reinstatement to jobs they were wrongfully
terminated from, and ordered the payment of more than $1.2 billion in back pay.
For all of these reasons, it is essential that the
Senate immediately act on approving President Obama’s five bipartisan—three
Democratic and two Republican—nominees to the NLRB, whose nominations were
recently approved by the U.S. Senate Committee on Health, Education, Labor, and
Pensions. Any continued blockade of NLRB nominees would not only pose a grave
threat to the rights of millions of workers but would also represent a
fundamental failure of American lawmakers to faithfully execute the laws they
have sworn to uphold. This is an issue not only of workplace protections but of
respect for the rule of law, and any further attacks on the ability of the NLRB
to perform its legally mandated duties should not be tolerated.
While it is not yet clear exactly how things will
play out in the Senate, if Senate Republicans attempt to hold up the nominees’
approval again—as they have done so often in the past—Democrats may have to
consider whether finally implementing meaningful filibuster reform is
necessary. The stakes are simply too high to allow the NLRB to quietly slide
into inoperability, and we cannot have a situation where there is no
enforceable labor law on Labor Day. American workers deserve to be protected
from the kinds of unfair and arbitrary labor practices that our nation saw fit
to ban decades ago.
About the authors: David Madland is Director of the
American Worker Project at the Center for American Progress Action Fund. Keith
Miller is a Research Assistant with the American Worker Project.
This article was published by the Center for
American Progress Action Fund.
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