The Senate’s approval of President Barack Obama’s nominees to the National Labor Relations Board (NLRB) in July averted a potentially embarrassing holiday — a Labor Day without anybody enforcing the nation’s labor laws. But the resolution brings only a short reprieve from an increasingly sharp, decades-long battle about both the rights of workers and the nature of American democracy itself.
Claiming that Obama was attempting to create a “radical” and anti-business NLRB, Senate Republicans had threatened to filibuster Obama’s full slate of five nominees, including two pro-management Republicans, as they had done for several other nominations during Obama’s tenure. If the filibuster had succeeded, the board would have been vacant with the end of the chair’s term in late August.
To the average citizen, the skirmish may have appeared to involve only an obscure agency concerned with the country’s vanishing unions, and to revolve around such governmental arcana as how many members must be seated for the NLRB to operate, or when the president can make a recess appointment.
But the basic functioning of the NLRB was at stake, and the NLRB acts as the de facto “Supreme Court” for workplace issues, responsible for enforcing basic job rights — essentially the rights to take collective action over issues at work, to form unions and to bargain collectively with employers — for roughly 80 million private-sector workers.
More fundamentally, the debate over what the NLRB should do touches on a question that has been — and should be again — at the heart of American politics: is a real political democracy possible if citizens do not have substantial control over their work lives?
At its founding, American notions of political democracy reflected the economy at the time. With the enormous exception of slavery, most non-native Americans lived in households where men were farmers, mechanics, tradesmen, shopkeepers or similar small property owners (and women were largely considered legal subordinates of the men in their lives). As a general rule, men of European origin either were economically independent or would soon become independent after brief periods as factory hands, apprentices or other subordinate workers — and women, also at times after stints in factory or domestic work, would marry and become part of the household economy. Some individuals might have more success than others, but among white male property owners, conditions of life were not dramatically unequal, as Toqueville noted.
But as the scale of capitalist industry and the prevalence of life-long wage labor increased after the mid-nineteenth century, many Americans asked how rule by the people could survive the changes — dramatic inequality of economic circumstances and increasing subordination for many people at work (or “wage slavery”), both of which gave rich business owners more power and diminished the culture of egalitarianism.
The right to vote is correctly seen as a centerpiece of American democracy — an argument that disenfranchised groups have successfully used to win that right for themselves (despite ongoing efforts to roll it back). But there’s another key aspect of the American democratic ideal that is often overlooked: It was assumed in the 1700s that most voting citizens had substantial control over their work and life, and that their freedom to speak and act politically depended on that economic independence.
But, as historian David Montgomery and others have chronicled, though workers battled to retain their autonomy, they typically lost both control and independence in the new factories and other capitalist enterprises. While a significant minority of workers in the late 19th and early 20th century turned to socialism as a solution, many progressive intellectuals, like Supreme Court Justice Louis Brandeis, sought to democratize industry without state or worker ownership of the businesses. Sen. Robert Wagner, chief sponsor of the 1935 National Labor Relations Act, which established the NLRB, shared the view that in order to preserve political democracy, the United States needed new forms of industrial democracy. “Democracy cannot work,” Wagner said, “unless it is honored in the factory as well as the polling booth.”
Wagner’s NLRA followed the earlier New Deal National Industrial Recovery Act, which had established a tripartite board with representatives from labor, management and government to adjudicate industrial disputes and encourage recovery from the Great Depression. The Supreme Court overturned the NIRA, but employers had already undermined the effectiveness of the labor board during its brief tenure, according to Cornell University professor James Gross, a leading NLRB historian. As a result, Wagner’s legislation focused on securing the rights of workers to organize unions, to bargain collectively with employers and to take direct, collective action on the job for mutual support instead of balancing conflicting interests. The act even made the encouragement of union organizing the official federal policy on labor rights.
In response, business interests, right-wing groups and many Republicans have fought the NLRB in two ways: by attempting to undermine its enforcement, and challenging its goals in the courts of law and public opinion.
The first NLRB members, Gross says, were government officials who had workplace experience but — unlike managerial representatives — would take seriously the law’s mandate to promote unions and bargaining as a matter of workers’ rights, as economic policy and as a voluntaristic, decentralized approach to industrial democracy. Also, unlike labor representatives, they might be trusted to prevent unions from engaging in unfair labor practices as well. Congress presumed that all of the NLRB members should represent neither labor nor management, but rather the public.
But in 1953, President Dwight Eisenhower, the first Republican president to make NLRB appointments, broke the non-partisan pattern and appointed three Republican lawyers with management backgrounds and two non-partisans. That created what later administrations understood as a “tradition” of three appointments from the president’s party and two from other backgrounds (eventually defined as from the opposing party). But labor unions and Democratic presidents continued to advocate neutral appointees, and no union official took a seat on the NLRB until Bill Clinton’s administration. Meanwhile, the National Association of Manufacturers, a big business group, pursued a policy of undermining the Wagner Act by promoting appointees who did not fully support the law’s goals, a strategy that Ronald Reagan escalated dramatically in 1981 by appointing prominent opponents of unionization to the NLRB, including the office of chairman.
Reagan signaled a new Republican strategy on labor. Up to that point, the GOP had pursued a Cold War-style containment policy, by weakening labor-law enforcement through a pro-management NLRB and conservative judges, for whom property rights always trumped labor rights. As Cleveland State University law school professor Joan Flynn noted in a 2000 article in the Ohio State Law Journal, NLRB votes became more sharply divided along lines of class and ideology after Reagan named blatantly anti-union appointees to the board.
What had been “unimaginable” to the authors of the Wagner Act gradually became the norm, Flynn wrote, as the board grew more politically polarized and less independent. She believes the widening gulf on the board since the Reagan administration has resulted from an increasingly polarized Senate that has insisted on greater influence over the nomination process, especially when the party that does not hold the presidency has had enough votes to block appointments.
Meanwhile, on the legal front, as corporate ideologues and conservative lawyers tried to give a pro-management tilt to the NLRB, they asserted that the 1947 Taft-Hartley Act had changed the goals of American labor law by adding a second mandate to protect individual choice and especially to protect workers from “forced unionism.”
Yet even though Taft-Hartley was designed to weaken unions after they had gained power from organizing in the years following passage of the NLRA, Charles J. Morris, emeritus law professor at Southern Methodist University, argued last year in the Berkeley Journal of Employment and Labor Law that neither Taft-Hartley nor other subsequent labor legislation replaced or modified the original language in the NLRA or the fundamental goal of American labor law. It remains focused on guaranteeing workers the right to act in solidarity with other workers and on encouraging collective bargaining.
In the contemporary battle over worker rights and the NLRB, unions understandably want an NLRB that fulfills its original purpose – encouraging workers to form unions and to engage in collective bargaining. Most Senate Democrats might have settled for a functioning Board that showed fairness and lack of hostility to unions. But only a few union leaders and fewer politicians now talk about the broader goal of industrial or economic democracy.
On the other side of the debate, employer groups such as the Chamber of Commerce, right-wing organizations such as the National Right To Work Committee, and nearly all Republican officeholders have become even more zealous and unified in opposing workers’ rights and in trying to crush a weakened labor movement. They have attacked Obama’s NLRB appointees as radical for simply following the law. In one of the key battles, the Board ruled in 2011 that Boeing violated the law by building a new plant in South Carolina, rather than expanding in the Seattle area, after the company had publicly threatened such action in retaliation for union contract demands. Boeing’s threats were clear violations of the law. But Sen. Lindsay Graham (R‑S.C.) tried to portray the NLRB as overstepping its powers and simply trying to block investments in right-to-work states. Graham said that under such circumstances, he preferred no Board at all.
In this latest battle over appointments to the NLRB, class divisions emerged starkly. “There’s an open conspiracy among corporate law firms, federal judges — many of whom used to be in the same firms — the U.S. Chamber of Commerce, and the Republican Party — particularly its senators,” says Larry Cohen, president of the Communications Workers of America. “The Republicans even say in their party’s platform that they believe that collective bargaining no longer has a place in American society — [that] it’s a dinosaur that impedes American society. This [NLRB debate ultimately] is a question of which side are you on? Working people or the corporations who are trying to deprive them of their last vestige of a voice?”
The deal that secured the nominations in July did not resolve this war over the role of the board and the aims of the law. It was a temporary fix, but, privately, labor movement officials are pleased with the nominees. Some nevertheless are miffed that Republicans insisted that Obama withdraw nominations for Sharon Block and Richard Griffin, lawyers with labor backgrounds whom Obama had named in controversial “interim appointments” in January 2012. Republicans wanted to force every concession possible out of the appointment bargain, including those that were mainly symbolic. (After dropping him from the Board slate, Obama nominated Griffin to be NLRB general counsel.) Other progressives were disappointed that Senate Majority Leader Harry Reid did not push for more filibuster reform, but simply won agreement to seat several delayed appointments, including heads of the Labor Department, Consumer Financial Protection Bureau and the Environmental Protection Agency.
The corporate attack on the NLRB, coupled with the conservative Republican agenda to undermine workers’ rights and protections in the states, suggests that the Republicans will increasingly try to eliminate the provisions in the NLRA that favor workers’ rights. And the steadily expanding partisan gulf in Congress, resulting from Republicans moving faster to the right than the Democrats, guarantees future appointment battles will be brutal whenever one party does not hold both the presidency and a supermajority in the Senate.
Technical fixes of the appointment process — such as having four board members appointed under current procedures be responsible for picking a fifth member and chair for the board — are not likely to satisfy anyone or to avoid future appointment crises. Republicans now openly oppose unionism, most certainly rejecting its growth as the heart of federal labor policy.
Protecting that legally intact mission will require a major political fight – and not just against the Republicans, business and the far right. Democrats need to revive a nearly vanished commitment to at least some vision of economic or industrial democracy as a core value of the party — taking a step beyond their useful, if sometimes grudging, willingness to engage in fights over NLRB appointments. But for that revival to occur, history suggests that workers will have to take to the battlefields of work and politics to collectively demand protection of their democratic rights, both in law and in practice.
David Moberg, a senior editor of In These Times, has been on the staff of the magazine since it began publishing in 1976. Before joining In These Times, he completed his work for a Ph.D. in anthropology at the University of Chicago and worked for Newsweek. He has received fellowships from the John D. and Catherine T. MacArthur Foundation and the Nation Institute for research on the new global economy.