Last week, organized labor was dealt a major blow on the federal level, when a federal appeals court ruled that President Barack Obama’s recess appointments to the National Labor Relations Board last January were invalid.
The decision, handed down by three Reagan appointees on a D.C. Circuit Appellate Court, which breaks with over 150 years of precedent on recess appointments from Republican and Democratic presidents alike, could invalidate all decisions going back to when the three board members in question were appointed.
Appeals are surely being prepared and the NLRB—the independent federal agency that governs labor relations in the private sector—is still functioning as usual. But the ruling is unquestionably bad news for workers nationwide, and really anybody who has sympathies for the plight of working people. The most recent incarnation of the NLRB was not exactly pro-union, but it was certainly less sympathetic to business interests than others in recent memory.
Over the last year, the NLRB had issued landmark pro-worker decisions like granting employees greater protections for their use of social media; it also ruled that employer-mandated programs to resolve workplace disputes violated federal labor law, and it strengthened the process of automatic dues deduction that is so critical to unions’ day-to-day existence. Those decisions, and a couple hundred others, are now all in legal limbo. If this case does eventually reach the Supreme Court, one probably shouldn’t take it for granted that years of precedent will necessarily prevail—especially when the case at hand concerns labor unions.
It’s disappointing enough that this rogue ruling could nullify some commonsense worker protections, but it speaks to a more important crisis: the general inadequacy of existing federal labor law to protect union and non-union workers alike. Of course, it has now become a Republican talking point to bash the NLRB as an extension of the mythical Big Labor—Mitt Romney, for instance, called it “an unaccountable and out-of-control agency” on the campaign trail, saying it was “staffed with union stooges.”
But the fanciful rhetoric on the right masks the reality that the NLRB and the laws it oversees have always been inadequate for workers, and that the agency has been under attack since its 1935 inception.
The NLRB was created as a means to quell the militant American labor movement of the 1930s. By bringing workplace disputes out of the streets and into the courts—indeed a separate set of specialized courts—the agency’s founding mission was to promote “sound and stable industrial peace.” About a decade later, the passage of the Taft-Hartley Act severely limited the ability of workers to go on strike, and paved the way for so-called “right-to-work” laws to take hold across the nation.
Today’s antiquated labor law still prevents workers in increasingly important sectors of the economy from joining a union, like domestic workers and anybody classified as an “independent contractor.” In the context of an increasingly unequal form of late capitalism, where businesses have more and more leverage in all spheres of day-to-day life, antiquated channels for resolving workplace disputes and stripped down labor laws offer only limited protection for workers. When a single court ruling can so easily throw hundreds of millions of workers’ rights into jeopardy, it’s a reminder that the NLRB system isn’t adequate.
As Richard Kahlenberg and Moshe Z. Marvit of the Century Foundation put it, “A year’s worth of pro-worker precedent has been erased in a single day; that should be a wake-up call.” The two have proposed making labor organizing a civil right, allowing workers to sue their employers for discrimination similar to the way victims of gender or racial bias can do. That might be a good idea in the longrun, but for now, workers and organizers will still have to negotiate through a tenuous set of laws that are far from sympathetic to their interests.
If there are any encouraging signs though, the innovative campaigns to organize non-union workers at Walmart and fast-food restaurants in New York City do offer some lessons in how to build workers’ power with the limited toolbox labor has.
Want Cole ruled invalid? Tell him at firstname.lastname@example.org.