In January, an appeals court effectively voided all rulings issued since 2012 by the National Labor Relations Board, which is headquartered in D.C. DCtim1, Flickr, Creative Commons
The Senate Health, Education, Labor and Pensions committee hearing tomorrow morning about appointments to the National Labor Relations Board may sound like an arcane, inside-the-Beltway event. But it will have very real effects both on major scale—determining the health of the nation’s economy and democracy—and a personal one, as in the case of Marcus Hedger.
In 2010, Hedger worked as a veteran printing pressman at Fort Dearborn Company, a large commercial printer in the Chicago suburbs. He also served his local union as shop steward and a member of the bargaining committee. When the union members voted down a contract that the company had tried to push through quickly, a Fort Dearborn vice-president said he was “sick of this union circus” and threatened to fire Hedger.
Two months later, Hedger was fired—for briefly letting a friend, another printer, into the shop for a brief visit, with the permission of his supervisor and in accord with the shop’s longstanding open-door policy. In 2012 the National Labor Relations Board ruled that Fort Dearborn had illegally fired him for his union activity and instructed the company to re-hire him with back pay.
But Fort Dearborn quickly appealed to the DC Court of Appeals, and the court put the case on hold while the Obama administration challenges a ruling in another case, Noel Canning v. National Labor Relations Board. In a January ruling in Noel Canning, the DC District Court agreed with lawyers for the company and its powerful supporters who filed “friends of the court” statements, including the Republican leaders of the House and Senate, that the president’s 2012 recess appointments to the NLRB were unconstitutional. Unless that decision is overturned by the Supreme Court on appeal, or until the Senate approves new NLRB appointments, the board’s rulings since January of 2012—including in Hedger’s case—and any new ones are effectively nonbinding.
Meanwhile, Hedger says, things are “getting tough” for him financially. He is working at a job that pays one-third of what he earned at Fort Dearborn. Unable to make his mortgage payments, he recently lost his home to foreclosure.
Now he is simply calling on the Senate to approve President Obama’s package of five NLRB nominees—which includes three Democrats and two Republicans—at tomorrow’s hearing, “so that other workers can have their rights protected as the NLRB tried to protect mine. Companies shouldn’t be able to get away firing somebody just because they stood up for their rights. It’s not only wrong. It’s un-American. We need a functioning NLRB to protect our rights.”
And if the Supreme Court upholds the ruling invalidating Obama’s recess appointments and forces the NLRB to re-hear its 2012 cases, Hedger, too, will need a full and functioning NLRB to hear his case again.
80 years of attacks
Business has long loathed the NLRB. Penn State law professor Ellen Dannin says that from the earliest days of the NLRB in the late 1930s, big business and right-wing politicians have tried to destroy the board bit by bit through legislation, cutting board funding, appointment of board members hostile to labor rights, judicial challenges, funding of groups like the National Right To Work Committee, and other tactics. They’ve also set out to undermine the labor laws the board was created to enforce, most dramatically with the passage of the 1947 Taft-Hartley law that undid many worker rights in the 1935 National Labor Relations Act. Courts, too, have restricted worker rights and rewritten the law through what Dannin calls “judicial amendments,” often by simply asserting that common law rights of property take precedence over workers’ rights, according to labor law historian James Atleson.
In recent years, the campaign against the NLRB has reached “crisis” proportions, said AFL-CIO president Richard Trumka in a press call on Tuesday. Noel Canning is only the latest blow; in 2010 the Supreme Court ruled in a case involving New Process Steel that the NLRB could only make valid decisions if it had a three-member quorum, even though the full five-member board had delegated power to the two members who would remain on the board until Congress and George W. Bush administration could overcome a stalemate on appointments.
After Obama took office, the Republicans in the Senate obstructed all appointments until the NLRB dwindled to only two members. To restore the quorum, in January of 2012 Obama resorted to the longstanding presidential power to make recess appointments (even though Republicans tried to foil him by not technically recessing). But in January of this year, the DC Court agreed with the business that filed Noel Canning and the Republican Party that President Obama did not have the right to make his recess appointments.
While NLRB and Justice Department appeal Noel Canning, Republicans are threatening to block appointments and on March 13 House Republicans—with all Democrats and 10 Republicans opposed--passed legislation that would essentially shut down the NLRB until the Supreme Court hears the cases. Meanwhile, employers are citing the recent court rulings as grounds to challenge the right of the NLRB to proceed with investigations, hearings or any other work at any level.
Nowhere to turn
Labor law, already on the ropes, is being pummeled into ineffectiveness. For example, in early May an appeals court ruled against an Obama administration order that employers post notice of workers’ right to organize unions, much as they post legal notices on fair labor standards or discrimination law. The NLRB had earlier ruled that such a posting requirement was legitimate.
Workers are losing a voice on the job, Trumka said on Tuesday, and that not only deprives them of their rights but also deprives the country of the broadly shared prosperity that comes when working people have more power, as they did from the late 1930s until the late 1970s.
“There are real consequences for real people here,” Trumka said.
While praising Obama for “doing everything he could” and putting together the traditional bi-partisan package of appointees, even if he did not approve of the Republican nominees’ views, Trumka lashed out at the Republican strategy of rendering government dysfunctional. “The American public is tired” of “Republican intransigence,” he said, and he vowed to mobilize whatever pressure was needed to win approval of the nominations.
But relatively few people realize how relentlessly, if quietly, business has fought to eliminate hard-earned worker rights and to prevent any serious discussion of expanding protections to include those in most other advanced economies, such as the requirement that employers to demonstrate a just cause for any dismissal.
“I suggest it’s time to have a land, sea and air war—like World War II—[on behalf of worker rights], as creative as possible and focused on finding the appropriate targets,” says Dannin, author of Taking Back The Workers’ Law. She says the employer attack on labor law “may be an invisible war, but there’s blood on the ground.”
Just ask Marcus Hedger.
