The Fair Labor Standards Act (FLSA) was passed and signed into law by Franklin Roosevelt in 1935 as part of his alphabet soup collection of agencies created to deal with the Depression. It established the National Labor Relations Board (NLRB) to administer union drives and deal with unfair labor practices. As such, it was a quasi-judicial body that acted as an impartial arbiter in labor disputes, or at least that is what the intentions were at the time. It was after the passage of the Taft-Hartley Act in 1947 that a General Counsel’s position was created; in effect, they acted like a prosecutor before the Board.
As originally planned, there were no rules on the partisanship of the Board. However, under Eisenhower, it became a general, unofficial practice to have the Board split 3-2 in favor of the Party that occupied the White House. The goal of Eisenhower’s NLRB was to cede control of labor issues back to the states instead of through a centralized Washington DC bureaucracy. However, this led to the passage of the Landrum-Griffin Act in 1959 which reclaimed much control back to the NLRB.
Kennedy’s NLRB largely had to deal with issues related to a schism between the AFL and the CIO, mainly over the definition of members of bargaining units. During this period, the Supreme Court started to grant deference to the NLRB. The Nixon/Ford years continued the tradition of the 3-2 partisan makeup, but that changed under Jimmy Carter who attempted to stack the Board with pro-labor nominees. Only a concerted effort by Senator Orrin Hatch of Utah prevented that.
Under Reagan, the Board took a pro-management stance in many areas. Most importantly, they came to reject the concept of partnerships between employers and labor, a movement that was taking hold in Germany and Scandanavia, especially when it came to business decisions like plant closings. When the Board started to rule against organized labor over the issue of boycotts- which the Supreme Court upheld- labor ceased using the Board to bring complaints and opted for dealing with businesses directly.
Clinton’s NLRB was constantly badgered by Congress, especially after the 1994 midterms. However, under George W. Bush, things became less contentious although there was concerted Democratic opposition, led by Harry Reid, against his appointments. Clinton had started the practice of “batching” appointments which was a major source of controversy; Bush ceased that practice. He also, unlike Barack Obama, refused to make recess appointments.
The current NLRB has not had a good record before the Supreme Court with many of their decisions and interpretations of the FLSA being struck down, often unanimously. Unfortunately what has happened is that appointments now tend to be Washington insiders who often were legislative aids.
If the NLRB is to be an independent neutral quasi-judicial entity, then politics need to minimized or mitigated because it will never be eliminated. Jimmy Carter let that genie out of the bottle. One of the biggest problems is that national labor laws have not undergone a thorough review and update since 1959. It is high time to do so.
The first order of business is to mitigate political polarization on the Board. This could be achieved officially by staggering terms, as they are now, but making them eight-years in length. Further, reappointment of Board members would be prohibited.
Second, the Board must decide whether they are prosecutorial in direction, or judicial. Some have argued for the elimination of the General Counsel’s position to achieve this. However, as an investigatory position, it makes sense.
Third, being a quasi-judicial body, their decisions would not be final. Instead, they would become less judicial and advisory in terms of rule issuance with those rules codified by Congress after debate. Being the alleged experts, Congress should show a relative degree of deference with the Supreme Court being the ultimate arbiter. In terms of findings and orders, the NLRB’s decisions would be final after a hearing.
Fourth, it should become practice for the Executive branch to consult with the Legislative branch before making appointments. This would speed up the confirmation process and weed out the more potentially controversial appointments.
Fifth, the laws must be amended to make it easier for workers to get out from under the thumb of a union. In Alabama, it took workers five votes to get out of union representation at a ball-bearing plant. Once a union gets their claws in a workforce, it is costly and time-consuming to get away from those claws.
Sixth, the NLRB must respect state right-to-work laws. It would be too much to ask for a national RTW law and politically such an idea is going nowhere. However, it would not hurt to try and put some votes on the ledger in an effort for transparency.
Seventh, any new law should address union dues and specifically those used for purposes other than collective bargaining purposes. Organized labor is one of the biggest campaign contributors every year with the overwhelming majority of those donations going to Democrats. While member opt-out procedures are sometimes used, they are cumbersome. In order to express the will of the individual worker, specific opt-in procedures should be established. That was basically the crux of the Supreme Court’s Friedrich case which ended in a 4-4 tie this past term.
Eighth, and finally, Congress needs to continuously review NLRB decisions, not just through oversight and appropriations, but through a biannual review process of rulings, decisions, and interpretations by the NLRB.
The bottom line is that Congress has ceded too much power to the NLRB and that ceding of power has been upheld by the Supreme Court in most cases. We are currently working under a law last amended in a major way in 1959. Many things have changed since then, most importantly management styles and free trade agreements. While there is a role for the NLRB, that role must be changed to reflect the reality of today.