Does the National Labor Relations Board Even Matter?

Mike Elk

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If so, can Lafe Solomon, its new general counsel, make it properly enforce labor laws?

The ineffectiveness of the National Labor Relations Board (NLRB) has always been a big complaint of organized labor. Many in unions have claimed that the long delays in hearing cases of illegal union busting — sometimes up to two years after an organizing drive is over – makes enforcement of existing labor laws a joke. With President Obama’s appointment of Lafe Solomon as the new NLRB General Counsel this month, people in labor are hoping that perhaps the federal body will finally enforcing the law.

Solomon’s nomination is important because the General Counsel office plays a key role in how labor law is enforced. The NLRB General Counsel is the chief prosecutor and enforcer of the National Labor Relations Act. Under the Taft-Hartley Act, he doesn’t report to the board, but operates independently of the board in a function similar to a DA. The General Counsel is also In charge of all the NLRB’s regions, setting the tone on how aggressive regions will be in prosecuting violations of labor law.

The General Counsel also decides which appealed cases are heard by the NLRB national board. He decides what type of cases the NLRB will prioritize in hearings, which cases the NLRB will prosecute, and when the NLRB will go to federal court in order to get an injunction to stop illegal union busting. Many in organized labor want the NLRB to hear cases that will heavily prosecute union busting, make card check easier, and shorten election periods so as to prevent long union busting campaigns. Some are hoping that Solomon will become the working man’s Matlock on the NLRB.

However, a quick survey of many union offices last Wednesday revealed that most in organized labor had no idea who Lafe Solomon is.

Solomon is a career civil servant who has worked on the NLRB for nearly 40 years, starting off as a field examiner in the early 1970s. He has worked as counsel for ten different board members, including Republican and Democratic commissioners. He was chosen because he was far less controversial than nominating someone who came out of a union legal department following the nomination of former SEIU lawyer Craig Becker as a NLRB commissioner.

Despite Solomon seeming like an uncontroversial pick, people that know him on the Labor Relations Board say he’s not some burned-out bureaucrat invested in the status quo of the lack of labor law enforcement. They portray him as someone who’s very passionate about the law and how the National Labor Relations Board helps people. Still, due to the Republican logjam of nominations, it is unlikely that Solomon will be confirmed as General Counsel. But he will continue in his post as Acting General Counsel, which he assumed last June.

Already, a lot of changes have happened since he was made Acting General Counsel last summer. Solomon has been trying to make the laws work better, pushing the regional boards to be more proactive in coming up with remedies. Last week the NLRB threatened to sue four states unless they acknowledge recent constitutional amendments requiring secret ballots” in workplace votes violate the U.S. constitution, as David Moberg reported on this website.

Firing an employee in the middle of a union organizer driving can quickly destroy the campaign by creating a climate of fear in the workplace. Clearly, it can also have a devastating effect on the employee’s life. We need to ensure that the statutory rights of a unlawfully fired employees are restored in real time,” Solomon said in a press release issued by the NLRB.

Many are excited to have Solomon leading up the General Counsel, as the NLRB is set to hear many important cases in front of it. Board is slated to make decisions in many key cases, including Lamons Gasket Company, which addresses issues with card check certification, and Roundy’s, dealing with workplace access for union organizers. Many are also hoping that through the enforcement powers the General Counsel office possesses, the NLRB will shorten election periods, making it more difficult for corporations to run long union intimidation/​union busting sessions.

With legislative options for labor law reform looking slimmer than ever, more in organized labor are looking to the Board to make organizing easier. However, some question whether after decades of degradation, the NLRB is up to the task.

I think people put too much stock in the National Labor Relations. The agency is fundamentally weak. It’s not going to result in transformation of labor law,” noted labor lawyer and author Tom Geoghagenn told In These Times. I think while we have very good people on the labor board right now that the NLRB still doesn’t have the capacity to change it. We need to have labor law reform at the legislative level.”

While it is unclear whether or not the National Labor Relations Board will be able to change things, it is clear that something must be changed. With nearly 20,000 people fired a year from their jobs and unionization levels down to 7 percent in the private sector – the lowest levels since 1901 — something must change, or else unions might very well go extinct.

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Mike Elk wrote for In These Times and its labor blog, Working In These Times, from 2010 to 2014. He is currently a labor reporter at Politico.
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