When the Hell Did the NLRB Become More Activist Than Labor?

Shaun Richman

Recent NLRB actions prove the time is ripe to challenge the rules of the system (UFCW)

When the hell did the fed­er­al gov­ern­ment get bold­er than most labor unions about assert­ing the legal rights of workers?

On Mon­day, in a 3 – 1 rul­ing, the Nation­al Labor Rela­tions Board (NLRB) reversed a Bush the Younger-era prece­dent that gave employ­ers a say over whether tem­po­rary and sub­con­tract­ed work­ers can be includ­ed in the same bar­gain­ing unit as the reg­u­lar, full-time employ­ees with whom they work beside. Go fig­ure, most employ­ers said no” to the propo­si­tion that peo­ple who work shoul­der to shoul­der, but are paid from sep­a­rate check­books, could bar­gain togeth­er in the same union. But the new Miller & Ander­son, Inc. deci­sion could force sub­con­trac­tors to bar­gain with a cer­ti­fied union over the wages and work­ing con­di­tions deter­mined by the con­trol­ling employer.

The rul­ing comes hot on the heels of the Board’s Amer­i­can Bap­tist Homes deci­sion. That case re-estab­lished a bal­anc­ing test for whether a boss’ employ­ment of per­ma­nent replace­ment strik­ers is actu­al­ly moti­vat­ed by a desire to bust a union —which goes a long way towards restor­ing a legal right to strike.

And, of course, the Board’s attempt to expe­dite rep­re­sen­ta­tion elec­tions by hold­ing friv­o­lous man­age­ment objec­tions in abeyance until after the work­ers vote near­ly broke the Con­gress. (Seri­ous­ly, if you want to drink some deli­cious boss’ tears Google quick­ie NLRB elec­tion.”)

As vet­er­an union orga­niz­er Stephen Lern­er suc­cinct­ly puts it, Unions have been sig­nif­i­cant­ly hob­bled by the legal régime, and a lack of imag­i­na­tion to chal­lenge it.” I have advo­cat­ed that unions should pur­sue an agen­da of judi­cial activism. These recent NLRB actions prove that the time is ripe to chal­lenge the rules of the sys­tem that keep unions shack­led. I’ve spent most of my career com­plain­ing about how slow and inef­fec­tive the NLRB is, as have most union orga­niz­ers. That bias should not blind us to the oppor­tu­ni­ty of the moment.

Grandma’s pot roast

After eight years of a Demo­c­ra­t­ic admin­is­tra­tion, and — with the implo­sion of Trump’s GOP — the rea­son­able expec­ta­tion of at least anoth­er eight years, we final­ly have a labor board that will no longer shrug and sigh that it is what it is” when it comes to the unfair rules of the system.

But are union lead­ers and staff bold enough to reject the is what it is” men­tal­i­ty? There’s an anal­o­gy that makes the rounds in Cor­nell University’s labor exten­sion pro­grams. It involves a man shar­ing his grandma’s pot roast recipe with a friend. The first step of the recipe calls for cut­ting the ends off the raw rump, which prompts the friend to ask, Real­ly? Does that, like, make the roast more ten­der … or what?”

The man shar­ing the recipe, who had nev­er ques­tioned why it called for the ends to be cut off, calls around to his par­ents, sib­lings and aunts and uncles to find out why grandma’s recipe does so. Final­ly, he gets his grand­ma on the phone and she says, Oh, that’s because the gro­cer only sold rump roasts that were too big for our roast pan.”

This is the most dev­as­tat­ing­ly on-the-nose anal­o­gy for how unions engage in long-term strat­e­gy. We hope and assume that some­time in the past, some­one smarter than us con­sid­ered all the pos­si­ble options and set­tled on what we are cur­rent­ly doing as the best pos­si­ble choice.

What if I told you … that isn’t what it is?

A good case in point is employ­ers’ right” to force employ­ees to attend manda­to­ry anti-union cap­tive audi­ence” meet­ings dur­ing a union orga­niz­ing dri­ve. Most orga­niz­ers accept that it is what it is” — anoth­er fucked up way that NLRB elec­tion rules are rigged so that unions lose a ton of rep­re­sen­ta­tion elec­tions. (Although, it should be not­ed that unions used to lose half of all rep­re­sen­ta­tion elec­tions dur­ing the Clin­ton I‑era and now tend to win about two-thirds of elec­tions, thanks part­ly to more strate­gic orga­niz­ing choic­es and part­ly to the NLRB’s recent return to its his­toric mis­sion of encour­ag­ing unions and col­lec­tive bar­gain­ing.)

Mean­while, appar­ent­ly, the NLRB has been on the record for half a cen­tu­ry as invit­ing unions to make a case that there should be some kind of equal access stan­dard for unions if an employ­er forces work­ers to attend manda­to­ry meet­ings on the sub­ject of union rep­re­sen­ta­tion. A group of 106 lead­ing labor schol­ars, led by Charles Mor­ris and Paul Secun­da, have filed a peti­tion at the NLRB to re-estab­lish just such a rule.

The spec­u­la­tion is that the NLRB is unlike­ly to act on Mor­ris’ and Secunda’s peti­tion, as it prefers to act on union (or employ­er) ini­ti­at­ed pro­ce­dur­al cas­es. The Miller & Ander­son deci­sion came in response to a union rep­re­sen­ta­tion peti­tion; the Amer­i­can Bap­tist Homes deci­sion in response to an unfair labor prac­tice charge. To win equal time, a union will have to file excep­tions to a los­ing rep­re­sen­ta­tion elec­tion in which the employ­er made use of manda­to­ry cap­tive audi­ence meet­ings. Sure­ly, and sad­ly, some­one read­ing this arti­cle has recent­ly lost an elec­tion under such cir­cum­stances, and can take the initiative.

Sim­i­lar­ly, most union­ists just accept that an employ­er has a right” to per­ma­nent­ly replace strik­ing work­ers. For exam­ple, Jane McAlevey, in her orga­niz­ing mem­oir Rais­ing Hell (and Rais­ing Expec­ta­tions), incor­rect­ly chalks it up to a law signed by Ronald Rea­gan. It wasn’t. It was a poor­ly decid­ed 1938 Supreme Court case that was dust­ed off in the 1980s. Like ref­er­ees in a schlocky Hulk Hogan wrestling match, Reagan’s NLRB appointees looked the oth­er way as employ­ers engaged in a coor­di­nat­ed union-bust­ing dri­ve that weaponized the unfrozen cave­man Supreme Court precedent.

After an unsuc­cess­ful attempt to leg­isla­tive­ly ban per­ma­nent replace­ments dur­ing the first Clin­ton era, most unions seem to have shrugged and accept­ed that work­ers can legal­ly lose their jobs for strik­ing — that is until the NLRB revert­ed to the pre-Rea­gan rules. But the Board can go fur­ther. The cru­cial phrase in that 1938 Court deci­sion, NLRB vs. Mack­ay Radio & Tele­graph Co., is that an employ­er can hire per­ma­nent replace­ments if it is nec­es­sary to pro­tect and con­tin­ue his business.”

In oth­er words, to meet the Supreme Court stan­dard, the NLRB could force Ver­i­zon or any oth­er For­tune 500 com­pa­ny to prove that they would oth­er­wise go out of busi­ness unless they can hire scabs to steal the jobs of their strik­ing work­ers. Good luck with that. Unions should get in the habit of fil­ing unfair labor prac­tice charges any time a boss adver­tis­es for scabs.

The NLRB even poten­tial­ly has the pow­er to reverse Right to Work.” The statutes, passed on a state-by-state basis, aim to pre­vent unions from col­lect­ing fees from all of the work­ers they are legal­ly oblig­at­ed to rep­re­sent. But the fed­er­al law that allows Right to Work” statutes has, until recent­ly, faced very few judi­cial chal­lenges. One open ques­tion is whether the leg­isla­tive intent of the Taft-Hart­ley act was mere­ly to ban union mem­ber­ship as a con­di­tion of employ­ment — not whether unions could nego­ti­ate manda­to­ry fees for griev­ance rep­re­sen­ta­tion ser­vices. Seat­tle Uni­ver­si­ty Asso­ciate Pro­fes­sor of Law Char­lotte Gar­den notes that the NLRB could approve such a for­mu­la, and has indi­cat­ed open­ness to cas­es argu­ing for it.

Only 3,115 days to go

Tom Perez, the cur­rent Sec­re­tary of Labor, is appar­ent­ly a bit noto­ri­ous for not­ing exact­ly how many days the Oba­ma admin­is­tra­tion has left (191, as of today) to make any gains for work­ing Amer­i­cans. Perez, who has milked every ounce of exec­u­tive author­i­ty that his depart­ment has in the pur­suit of that goal, is most well known (on Wall Street, at least) for get­ting Oba­ma to sign an exec­u­tive order that extend­ed over­time pro­tec­tions to salaried work­ers earn­ing less than $47,476 per year (up from the mid-1970’s stan­dard of $23,660). In so doing, he won a pay raise, or reduc­tion in hours, for mil­lions of work­ing Amer­i­cans. And for that mitz­vah he is report­ed­ly on the short­list for Hillary Rod­ham Clinton’s vice-pres­i­den­tial pick. And, hon­est­ly, choos­ing Perez is Clinton’s last chance to dis­prove Erik Loomis’ con­tention that she’s a Martha Coak­ley-lev­el cam­paign­er with a once-bril­liant cam­paign­er for a husband.”

If labor lead­ers allowed them­selves enough opti­mism to last not just until the end of Obama’s term but to antic­i­pate at least anoth­er eight years of a Demo­c­rat in the White House, while main­tain­ing the urgency with which Sec­re­tary Perez con­ducts him­self, imag­ine what we could win for work­ing fam­i­lies. If I didn’t mess up my math, that means we have at least 3,115 days left of an activist, major­i­ty-Demo­c­ra­t­ic NLRB with which to press our case for a restora­tion of work­ers rights.

Because here’s the thing: chal­leng­ing bad labor law involves break­ing the law. When unions vio­late the law in pur­suit of a voice at work for unor­ga­nized work­ers (by, say, engag­ing in sol­i­dar­i­ty boy­cotts, wag­ing par­tial strikes or mak­ing per­mis­sive” com­mu­ni­ty goals their essen­tial bar­gain­ing demands), the NLRB is the sher­iff that is tasked with tak­ing them to court. Is it crazy to think that this NLRB might treat bad labor law the way that Obama’s Jus­tice Depart­ment treat­ed the Defense of Mar­riage Act? In the court because they have to be, but con­ced­ing that the law is unjust?

Grandma’s pot roast recipe should be revised for our new­ly remod­eled kitchen.

Shaun Rich­man is an In These Times con­tribut­ing writer and the Pro­gram Direc­tor of the Har­ry Van Ars­dale Jr. School of Labor Stud­ies at SUNY Empire State Col­lege. His Twit­ter han­dle is @Ess_Dog.
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