The NLRB is back, but does it matter?

Dan Bowling Senior Lecturing Fellow, Duke Law School
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Uh oh, they’re back. The National Labor Relations Board is at full strength for the first time in years and ready to engage in industrial mischief. Operating without a quorum for years and under a cloud of questions about its Constitutional legitimacy, the board has been stymied in its attempt to implement the pro-labor agenda President Obama can’t get through Congress. That will change, as the Senate approved five new members on July 30th, bringing the Board back to full strength for the first time in a decade and rendering the Constitutional question largely moot.

The business community and political right are squawking about the obvious pro-labor bias of the new Board, but that – both the squawking and the bias – is to be expected. Of course the Board is pro-labor. Although designed by Congress in 1935 to be non-partisan, for decades it has been a playpen for whichever party holds the White House. Obama won two elections in no small part because of the hundreds of millions big labor sent his way. He can appoint a Board that shares his stated desire to radically transform the way unions are formed in this country if he wants to. As long as he can get his appointees through the Senate.

And there is the rub; at least it was until recently. The Board is supposed to have five members, including a chair. Traditionally, three are from the President’s party and the other two from the opposition. After years of Obama trying to get away with no Republicans on the Board – a “rogue agency,” according to Senator Lindsey Graham – he finally sent the Senate a full slate of nominees split along traditional lines and pulled his most controversial appointees. This is an option Obama “had for the last five years but chose to forgo in order to try and force some really way-out people on the Board” says prominent Atlanta labor lawyer John F. Wymer, III. “A less combative Obama should and could have done so a lot earlier.”

Most people, including lawyers and law professors that don’t specialize in labor law, have little idea of what the Board is or how it operates. It is not the “Supreme Court” of labor law, as Chris Hayes of MSNBC vapidly called it. The NLRB is only in theory an impartial adjudicatory agency; in operation it is “a partisan tribunal,” says Kenneth Lopatka, a law professor and former chief counsel to the Chairman of the NLRB. Unlike a court of law, it pays little attention to its own precedents and is capable of wildly shifting rulings on important issues depending upon its political makeup. And make no mistake about the political makeup of the majority of this Board: Chairman Mark Pearce is a “union puppet,” says Lopatka, and new member Nancy Shiffer, a lifelong union lawyer, “will never take a position against the AFL-CIO.”

But is the return of a fully constituted, pro-labor Board really that big a deal for the business community? Should it have anything to fear from the “Grim Reaper of Job Creation,” as Senator Graham calls the Board, or by extension, unions? Maybe not. Unless Big Labor frees itself from single-party identification and returns to its organizing and bargaining roots, the labor movement will continue to fade into the margins of American society as a tired, left-wing special interest group, of interest to virtually no one under the age of sixty.

Here’s the bottom line. Almost 95% of private businesses in this country are non-union and want to stay that way. Although the National Labor Relations Act applies to these employers and the Board has shown increasing willingness to interfere in their operations, the only time the NLRB is relevant to most of them is when their employees are trying to organize. Unions used to help workers do that, and represented almost 40% of private sector workers. Now unions virtually ignore organizing in favor of politicking, spending billions — yes, billions – in support of Democratic party candidates since 2005, while union membership is at all time lows.

Why don’t unions reign in their political action committees and pour those dollars into organizing, as I have suggested before? I am not reflexively anti-union; I think they have a role to play in a capitalistic society by keeping the extremes of managerial excess in check. However, until they quit worrying about votes for Democrats and start worrying about votes to organize unions it doesn’t matter who sits on the NLRB.

Their death spiral will continue.