“Worse than Obamacare,” conservatives demonize the NLRB

Two recent events – the NLRB complaint against Boeing in April and its proposed new rule on union certification elections in June – have sparked right-wing outrage against the board. Although unusual in its detail and even more unusual in the reaction it has provoked, the Boeing complaint involves a relatively standard violation of the National Labor Relations Act (in this case, retaliation against workers for exercising their right to strike). The proposed new election rule will get rid of the worst cases of delay, but avoids setting explicit time limits for the conduct of union certification elections, as preferred by unions.

In other advanced democracies, or even in the United States a few decades ago, both developments would be viewed as routine and uncontroversial. In the context of the Republican Party’s extreme stance on labor issues, however, they have provoked hand wringing and repeated calls for the abolition of the NLRB.

A little background helps put these events in context.

The conservative crusade against the NLRB started not in April, but as soon as Obama took office, first with opposition to Craig Becker’s nomination to the board. Becker, one of the most able lawyers to serve on the NLRB, was the subject of a vicious campaign that, for a while, dominated the editorial pages of The Wall Street Journal, a trifling issue for one of the world’s great newspapers. Becker’s crime? Like most Democratic nominees, he had previously worked for labor organizations, and, crucially, had published law review articles analyzing employer domination of the union certification process. 

Thus, conservatives declared Becker beyond the pale and mobilized against his nomination in the Senate. He got on the NLRB only through a Presidential recess appointment, which will soon run out. The conservative Crossroads GPS has demanded that Becker recuse himself from the Boeing case and other rulemakings that might affect his former employers, which would cover just about every activity carried out by the board.

Then the Boeing complaint gave the NLRB’s conservative critics the red meat issue they could take to the media – “government bureaucrats tell a private company where it can and cannot do business” – but their outrage was largely a dry run for the election proposal, and an effort to construct a narrative of a federal agency “run amok.”

The NLRB has organized public hearings on the new election rule later this month. Based on the exaggerated rhetoric at Thursday’s House hearing, we will likely hear accusations of how the board is trying to silence employers, but will also learn about empirical data that supports the case for new rules. 

Academic research demonstrates how the current system often allows employers to delay votes for months, how unfair management practices are more common during lengthy elections, and how employers do not wait until the start of an official NLRB election before communicating their opposition to unions, thus refuting the notion that streamlining the election process will deny them the opportunity to express their views. As a result, the nation’s leading labor and employment scholars overwhelmingly support the modernization of the NLRB’s antiquated administrative practices on union certification.

So what will happen next in the right’s war against the NLRB? Depending on the outcome of the Boeing complaint – the company might yet see sense and settle the dispute — that issue could disappear sooner than Republicans would like. But the controversy over NLRB elections will intensify over the summer as the GOP leadership and conservative pundits turn up the heat. The National Review, for one, believes that the Republican candidate for president should “remind Americans daily what the Obama administration has attempted to foist upon American employers.”

However, this last comment really gives the game away: Like most commentators on the right, either through blissful ignorance or willful misrepresentation, The National Review appears confused about the fundamental purpose of federal labor law, which is to protect the fundamental rights of employees.

Thus, pitifully weak labor unions are cartels. Labor law is intended to protect the rights of employers. And the NLRB is undermining the U.S. economy. What a strange and threatening world the GOP and conservative pundits now occupy on labor issues.

John Logan is Professor and Director of Labor and Employment Studies at San Francisco State University.