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Getting Ugly at the NLRB

Anti-Labor Republicans Hit New Low

by DAVID MACARAY

For 76 years it’s been the job of the NLRB (National Labor Relations Board) to enforce the provisions of the National Labor Relations Act (passed in 1935 and better known as the Wagner Act).  The National Labor Relations Act is the legislation that governs such things as union elections and collective bargaining.

While there have been the usual ideological squabbles over the years, the NLRB has managed to take its cow to market under the Republican administrations of Dwight Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan and George H.W. Bush.  There were disputes, but most were settled by compromise.  It wasn’t until George W. Bush became president that things got ugly.  And now, under Barack Obama, they’ve gotten way uglier.

Appointed by the president, the NLRB panel is required to have five members.  Traditionally, the panel tends to break along party lines, often with a 3-2 split in favor of the White House.  However, in the absence of all five members, the Board can still conduct business so long as it has a quorum, which is a minimum three members.  But in the absence of a quorum the Board can’t act.  It can’t interpret any language, pass down any rulings, can’t come to the aid of workers illegally discharged for union activism, can’t insist that employees be awarded back pay for overtime hours they were cheated out of, can’t settle a ULP (unfair labor practice charge) filed during contract negotiations.  Without a minimum of three members, it can’t do anything.

As it stands today the NLRB consists of three members, Mark Pearce and Craig Becker, both Democrats, and Brian E. Hayes, a Republican.  The reason there are only three members is because the Republicans in Congress have steadfastly refused to install anyone who remotely resembles a pro-union vote, consigning the Board to limp along on the bare minimum.  In fact, Becker himself is a “recess appointee” (appointed by Obama while Congress was not in session), which means his term expires at the end of the year.

Given how virulently hostile pro-corporate Republicans are toward regular working people, and how contemptuous they are of the 76-year old federal institution that was created specifically to guarantee those people’s rights, here’s the question:  What will they do in response to that 2-1 Democratic majority on the NLRB?  Answer: Brian E. Hayes, the lone Republican, has threatened to resign, leaving the Board without a quorum and without the power to act.

How outrageous is such a move?  Charles Craver, a George Washington University law professor, is quoted as saying that it is “as bad as it’s been in terms of partisanship in the 40 years I’ve been in the labor field.”  And this is William B. Gould IV, Clinton’s former NLRB chairman (who himself was criticized by organized labor for being too weak), weighing in on the Hayes’s threat:  “I have never heard of anything like that happening,” he said. “It’s unprecedented.”

This blatant obstructionism reminds us of the grade school kid who threatened to take his football and go home unless he was allowed to be quarterback.  Because Americans hate kids like that, it would be wonderful if President Obama, utilizing the bully pulpit, went on TV and exposed the Republicans for the sniveling cowards they are.  Alas, our president doesn’t have that much fight in him.

DAVID MACARAY, an LA playwright and author (“It’s Never Been Easy:  Essays on Modern Labor”), was a former union rep.   He is a contributor to Hopeless: Barack Obama and the Politics of Illusion, forthcoming from AK Press.  He can be reached atdmacaray@earthlink.net