POLITICS JULY 15, 2013
What happens if an entire 80-year-old agency of the United States government with some 1700 employees effectively ceases functioning, even as it continues to exist on paper and occupy a line on the federal budget?
That is the question that lies at the heart of the bitter dispute in the Senate over the Republican minority’s increasingly boundless use of the filibuster to block President Barack Obama’s executive branch nominees. Senate Majority Leader Harry Reid thought that he had struck an agreement with Minority Leader Mitch McConnell early this year to hold off on the filibuster reform many Democratic senators were pushing for, on the understanding that McConnell would restrain the use of the tactic to block executive branch nominees. Instead, the Senate GOP is now vowing to block, among others, Obama’s nominees to lead the Environmental Protection Agency (a former Mitt Romney appointee in Massachusetts), the Department of Labor and the new Consumer Financial Protection Agency, in what more and more veteran observers are diagnosing as a nullification approach to political opposition.
This has Reid warning that he may employ the “nuclear option” to change Senate rules to allow for a straight-majority vote on nominees. Reid told his Democratic colleagues last week that what McConnell was doing now was unprecedented, that they had been willing to hold votes on plenty of eyebrow-raising nominees made by George W. Bush: “I ate shit on those nominees,” Reid told them, according to Politico. McConnell, in turn, is warning that going nuclear will make Reid the “worst leader” in the history of the Senate. To which Reid retorted: “He tends to not focus on what he has done to the Senate. I guess he follows, I hope not, the demagogue theory that the more you keep saying something that is false, people start believing it.” A meeting is scheduled for Monday evening to find a way through the crisis.
It is tempting to dismiss it all as so much institutional wrangling until one considers the agency that has suffered the most extreme fallout from Republican intransigence, the National Labor Relations Board. The NLRB has, since the New Deal era, been tasked with enforcing the nation’s labor laws. But it has been brought to a complete standstill, leaving both workers and employers around the country in a confounding limbo with no end in sight.
Many Republicans have never been particularly fond of the NLRB and did their best to install business-friendly people to the five-member board. But until recently they accepted it as the nation’s arbiter of workplace disputes in the never-ending balancing act between employer and labor. A certain someone said in 1985:
A free labor movement is essential to the preservation and expansion of free enterprise. Since its passage in 1935, the National Labor Relations Act has been a bulwark of support for this vital American heritage. A half-century ago, this law established the right of workers to organize and bargain collectively, should they choose to do so. Our system of peaceful industrial relations and the national labor policy that has evolved from the Act rest on this principle of free choice...In conducting union representation elections and processing unfair labor practice charges, the NLRB has helped build a peaceful industrial relations system that is a model for the free world. The processes of the board, as necessary today as they were 50 years ago, provide a forum and an orderly legal framework for resolving labor and management disputes. Truly, the NLRB has succeeded in fulfilling its mandate for America.
And who was this person? That flaming social democrat, Ronald Reagan.
Times have changed. The board began to slide into disarray at the end of the George W. Bush administration, when Senate Democrats, upset at the strong pro-employer tilt of the agency under Bush, left the board in 2007 with only two members, one from each party. But that didn’t keep the agency from functioning: Under an unusual bipartisan deal, the remaining pair agreed to rule on cases they could agree on, leaving the rest in a burgeoning backlog. The Supreme Court later ruled that the rulings by the two-member board were illegitimate, leaving chaos in its wake and making it plain to future boards what the cost of an undermanned board would be.
From the start of the Obama administration, Republicans seized on the NLRB as a likely driver of his radical agenda. Never mind that Obama failed to push organized labor’s top priority, the Employee Free Choice Act, when he had the chance in 2009. Never mind that even many employer-side lawyers have acknowledged that labor law in the country is outdated and in need of a serious overhaul. Never mind that unions’ numbers have continued to dwindle during his tenure, making a mockery of McConnell’s and others’ warnings about the power of “Big Labor.” Never mind that the case that most infuriated Republicans—the NRLB general counsel’s finding against Boeing’s proposed move to nonunion South Carolina—was not issued by the full board and resulted in an eventual agreement between Boeing and the union. None of it has stopped Republicans from espying in even the most modest of rules issued by the board—requiring employers to post notice of workers’ rights!—the second coming of Trotskyism.
As the paranoia about the agency ratcheted up, Senate Republicans simply stopped confirming Obama’s nominees to the board, even though he held to the custom of naming two members from the minority party. Obama finally employed a controversial tactic to seat his nominees in a recess appointment. In January, the conservative-leaning D.C. Court of Appeals declared those appointments invalid, a ruling the administration has appealed to the Supreme Court, which will rule on the case next spring. Dozens of employers have seized on the appeals court ruling to declare that the many judgments that have been issued by the NLRB while the contested nominees are on board are null and void. Meanwhile, the board will be without a quorum of three members by the end of August, leaving it indisputably defunct. Obama recently submitted a full slate of five members to the Senate— again, three Democrats, two Republicans—but Republicans are vowing to filibuster them, arguing that the federal court ruling has rendered illegitimate the two Democratic nominees who were installed in the recess. But of course the recess appointments only came before the court in the first place because Republicans refused to allow them to come up for a vote. (McConnell has graciously offered to approve the Republican nominees and the third Democratic one, which would leave the board with a quorum -- a Republican-controlled one, as if there was not a Democratic president sitting in the White House.)
So widespread and consequential is the dysfunction and uncertainty around the board now that it is upsetting even many on the employer side. Mike Asensio, an employer-side labor-law attorney at Baker Hostetler in Ohio, told me that it has gotten to the point where he has to tell clients that regardless of whether they win or lose a case, they may well have to pay to argue it all over again in the future. “I thought the [two-person board in 2007] was the lowest situation we’d get to in dealing with this agency, but this is ten-fold worse,” Asensio said. “Right now I don’t think labor or business is being served by what’s going on. I have not come across anybody who thinks this is a good thing.”
Among the major, precedent-setting rulings that have now been cast in limbo, Asensio noted, are two 2012 ones that established guidelines for when employers could and could not discipline or terminate employees for social-media postings. Unions, meanwhile, point to a slew of workplaces where employees who went through the trouble of voting to form collective-bargaining units find themselves unable to actually use their newfound solidarity to any purpose: their employers are simply citing the NLRB’s dysfunction to declare board rulings or certifications of new unions null and void. The board is unable to enforce findings against Salem Hospital Corporation in New Jersey, which refused to bargain with newly organized nurses, against Oak Harbor Freight Lines, in Oregon, which cut off health and pension benefits after a strike, and against a Minnesota school bus company that fired five employees for talking about a union, among many other cases. “It’s a total breakdown. This part of our government is not functioning, and there’s a significant cost to people, and to the economy as well,” said George Kohl, senior director of the Communications Workers of America.
And then there is the newly organized Teamsters unit at a Chicago branch of trucking company CR England. The 70-driver shop voted to form a union in February. But CR England has refused to recognize the unit, saying that the federal appeals finding against Obama’s recess appointments rendered illegitimate even the board’s appointment of the regional director who oversaw the election. So the new unit is unable to begin bargaining with their supervisors over the issues that led the drivers to vote for a union, such as their high health insurance premiums and the favoritism that leaves many drivers with precious little to show for 12 or 14 hour shifts – since drivers are paid by mileage, not by hours, those ordered to wait long stretches at pick-up locations often end up with sub-minimum-wage-level paychecks. Many drivers have gotten fed up and have left since the election, dropping the unit closer to 50 drivers. “It’s frustrating to these workers who made the commitment to fight for change and better opportunities, and now we’re allowing these companies to carry on” with workplace abuses, said Greg Foster, lead organizer of the new unit. “We’re not receiving honest treatment.”
It’s no way to run labor law at a time when evidence mounts that employees’ diminished sway on the job is contributing to growing income inequality. And it’s no way to run a government.
Alec MacGillis is a New Republic senior editor. Follow him @AlecMacGillis