NLRB Still Broken: After Nearly 20-Year Battle, Workers Die Before Settlement Reached

Art Levine

Even under President Obama, the National Labor Relations Board is still broken in responding to anti-union abuses. A case in point: After nearly 20 years of a protracted legal battle, four construction unions have finally reached a settlement with Flour Daniel, Inc. over its practice of discriminating against union organizers who apply for work.

Flour Daniel will pay $12 million in back pay and interest, which will be allocated to 167 union members, who will receive between $8,000 and $217,000.

But in waiting for the resolution of the case, some employees died before the settlement was reached. The presidents of four construction unions said in a statement:

Sadly, more than a dozen of the discriminatees have passed on in the years since thse charges were filed, illustrating the need for labor law reform in the United States, beginning with the passage of the Employee Free Choice Act. The legal right of workers to organize is routinely abused. It should never take two decades for workers to receive justice under the law.

As the AFL-CIO Now Blog reported:

The settlement ends several cases before the National Labor Relations Board, brought by three of the unions—Boilermakers, Electrical Workers and Plumbers and Pipe Fitters. The United Brotherhood of Carpenters is also a party to the litigation. Some of the cases date back to the early 1990s. 

In a joint statement, the presidents of the four unions said:

This settlement is unprecedented for this type of case. It is the largest in terms of back pay, and it is the longest. The combined cases took nearly 20 years to litigate through the Labor Board and the appeals process…

Yet even the Obama administration’s NLRB has been slow to respond to crises, including not following through on its findings of unfair labor practices by the private equity firm owners of the Stella D’Oro plant — thus essentially enabling the plant to close. As Ray Scannell, director of reasearch for the international bakery workers union told me in an e-mail:

What Stella illustrates is both the inadequacy of the law and the ineffectiveness of the enforcers. 

The inability to stop the predatory destruction of the company shows how weak labor protections are AND how ineffective the NLRB’s office of the General Counsel (which runs the Regions as well as the DC enforcement offices) is.

Brynwood and its minions openly defied the law and the Board and the latter tucked their tales between their legs and shrugged. The NLRB is like the Keystone Cops.

In addition, the NLRB has three pending appointments from Obama who haven’t been approved yet, so it’s a two-person board that’s put off major decisions – and its gridlock is being challenged before the Supreme Court. As the Associated Press reported:

WASHINGTON – A nonstop political tug-of-war has left the agency that referees labor disputes deadlocked for the longest period in its history, unable to resolve some of the thorniest clashes between unions and management.

The National Labor Relations Board typically has five members – three Democrats and two Republicans, or three Republicans and two Democrats, depending on which party holds the White House.

But since January 2008, the board has been stuck with three empty seats and just two members – one from each party. The standoff means the board has spent nearly two years putting off dozens of cases that could forge new policies…

Those vacancies have lingered into President Barack Obama’s first term, despite Democrats being in power in the White House and Congress. Obama nominated three new members to sit on the board last month, but the U.S. Chamber of Commerce quickly demanded a rare hearing on one of them, former union lawyer Craig Becker, calling his views out of the mainstream…”

It’s not clear when lawmakers will consider the appointments or whether a hearing will be set. Given the likelihood that an Obama board would reverse several Bush-era precedents, Republicans may be in no rush.

Now there’s a pending Supreme Court challenge on whether two-man rulings by the current board are even valid. As a Board press release said on September 29:

On behalf of the National Labor Relations Board, the Solicitor General of the United States today asked the Supreme Court to settle the question of whether the Board is authorized to issue decisions while three of its five seats remain vacant…

The two Board members remaining, acting as a quorum of the group, have issued nearly 500 decisions.

While many of those decisions have been accepted by the parties, dozens have been appealed to the federal courts of appeals on the two-member question, and decisions have been split. 

Meanwhile, workers at plants like Flour Daniel and Stella D’Oro find themselves either out of jobs — or dead — before the NLRB acts. As a 19th century British politician once said, Jusice delayed is justice denied.”

Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate​.com, Salon​.com and numerous other publications.
Subscribe and Save 66%

Less than $1.67 an issue