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Workers' Rights and the NLRB

February 26, 2013

Our nation’s economic health depends on the ability of workers to join together and collectively bargain with their employers over wages and working conditions. Rising income inequality, stagnant wages and a lack of good, well-paying jobs can be tied directly to the erosion of collective bargaining rights and declining union membership—a fact so painfully revealed in the recent report by the Bureau of Labor Statistics that shows union membership is at its lowest level since the 1930s.

Yet instead of supporting workers and their collective bargaining rights, anti-worker politicians in Washington and their corporate sponsors have been engaged in a sustained and vicious campaign to weaken workers’ collective rights and derail the key agency—the National Labor Relations Board—charged with enforcing these rights in the private sector. They have exploited arcane Senate rules—rules that should have been changed at the beginning of this year but sadly were not in any meaningful way—to block nominees and block legislative reform, which still is urgently needed and that remains a key priority of the labor movement. They have conducted at least nine oversight hearings on the decisions and actions of the NLRB in a blatant attempt to intimidate appointees who are simply doing their jobs. Their aim is to tie up the NLRB, render it inoperable and keep it from enforcing workers’ rights. As Sen. Lindsey Graham (R-S.C.) said last year after President Obama submitted the names of two individuals to serve on the NLRB: “I will continue to block all nominations to the NLRB….The NLRB as inoperable could be considered progress.”

Now, a radical decision by a federal court of appeals has called into question President Obama’s appointments of three members to the NLRB—two Democrats and one Republican—made in January 2012 in order to ensure the NLRB would maintain a quorum to be able to continue operating and enforce workers’ rights.

The decision by the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning is unprecedented, and it is sweeping in its potential reach. By the court’s logic, more than 300 recess appointments made by Presidents Reagan, Clinton, Obama and both Presidents Bush were invalid—including 141 appointments made by President George W. Bush alone. It’s a shocking and far-reaching decision that dramatically and painfully illustrates the consequences of Senate Republicans exploiting Senate rules to prevent President Obama from getting all but two of his nominees confirmed to the NLRB and any of his nominees confirmed to the District of Columbia Circuit.

Noel Canning is one decision by one court—it is not the final word on the validity of President Obama’s recess appointments. The decision is at odds with the decisions of at least three other courts, and the government should quickly seek review, and reversal, of the decision by the U.S. Supreme Court. Each day that Noel Canning remains on the books means further chaos and disarray at the NLRB and difficulties in enforcing workers’ rights.

The NLRB remains open, and the recess appointees are trying to go about business as usual, notwithstanding demands by Republican senators that they resign, and the introduction of legislation to eliminate their pay if they do not. But the Noel Canning decision has seriously undermined enforcement of the law and made an already weak law even more lopsided against workers exercising their rights. As long as Noel Canning stands, any employer can delay liability for violating the NLRA by challenging the NLRB’s decision in the District of Columbia Circuit, because that court is deferring action on all NLRB cases pending Supreme Court review of the Noel Canning decision. As a practical matter, this means the NLRB will not be able to enforce the law effectively for workers unless and until the Supreme Court reverses Noel Canning, the District of Columbia Circuit unfreezes pending cases, and those cases are decided—probably well into 2015. In the meantime, employers escape liability for violating the law. And they are brazenly and outrageously trying to exploit and extend the logic of Noel Canning to challenge elections, injunctions and other actions by the NLRB, causing further chaos and uncertainty for workers.

This is an intolerable and unacceptable situation. Working people deserve a functioning NLRB that will enforce workers’ rights.

The labor movement must mobilize itself and its allies to demand action by the Senate and win confirmation of a package of nominees to the NLRB.  We will hold senators of both parties accountable if they stand in the way or fail to act.

We must mobilize, demonstrate, and take direct action against those exploiting Noel Canning and blocking the enforcement of workers’ rights.

The president must immediately nominate, and the Senate must quickly confirm, a full package of nominees to the NLRB—five board members, including Chairman Mark Pearce, members Griffin and Block, two Republican members, and Acting General Counsel Lafe Solomon.

Senate Majority Leader Harry Reid must use every means available to win confirmation of this package of nominees. If Senate Republicans exploit the Senate rules and try to filibuster the President’s nominees, Senator Reid should take all necessary steps to overcome the filibuster, and if not successful, lead an effort to change Senate rules so the President’s nominees cannot be blocked by the minority. 

The Obama administration must continue to speak out on the importance of collective bargaining rights, defend the NLRB against congressional attacks and work aggressively to win Senate confirmation of the president’s nominees.

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