Does the NLRB Actually Matter?

We know the agency hurt workers under Trump. Is there any reason to think it can still help them?

Perhaps this should have been the first entry of Labor Law Lite. After all, if the answer to the title of this post is no, then you had no reason to read Sunday’s post and I had no reason to write it.

The National Labor Relations Board, the United States’ sole enforcer of federal labor law, turned 85 this year. It has few friends or allies. Conservatives condemn it as a nuisance that hinders corporate decision-making; libertarians want it abolished. The Left views it as an ineffectual and outdated hall monitor; liberals have long mostly ignored it.

The NLRB began its existence as arguably the most radical and successful agency of the New Deal, enthusiastically enforcing the National Labor Relations Act against many of the most powerful corporations in the country until it was red-baited into submission. The Labor Board’s statutory scheme has underwent only one major revision since its inception; its powers and procedures otherwise remain virtually frozen into their World War II-era structure.

For the uninitiated, that framework is as follows. The NLRB is empowered with overseeing and enforcing federal labor law. Its two primary functions are (1) the supervision of union representation elections to establish collective bargaining relationships and (2) the investigation and prosecution of unfair labor practices committed by employers and unions. The General Counsel acts as a prosecutor, sending cases to a five-person board which serves in a quasi-judicial role on appeal from decisions rendered by administrative law judges. The Labor Board’s headquarters lie in D.C., but the bulk of the investigative and case handling work is performed in its 48 individual field offices stationed around the country.

The agency’s workload has risen and fallen with the fortunes of the labor movement. In 1980, the Labor Board docketed a record 44,063 unfair labor practice charges and employed 2,921 full-time permanent staff. In 2019, those numbers stood at 18,552 charges and 1,286 personnel. Some of that decline is due to internal sabotage by Republican appointees, but the Labor Board undoubtedly has less to do when private-sector union density stands at 6.2%.

This decline in responsibility and prestige was predicted by the NLRB’s most frequent customer: organized labor. As early as 1984, then-AFL-CIO President Lane Kirkland—noting the many restrictions placed upon unions under the NLRA—argued that unions would be better off if the Act were repealed and replaced with the old “law of the jungle.” The current federation President, Richard Trumka, expanded upon this reasoning in a 1987 law review article written during his time leading the United Mine Workers. These arguments must be contextualized within the labor movement’s general disgust with the exceptionally anti-union Reagan Board, which Trumka artfully described as “that gulag of Section 7 rights.” But they were also part of unions’ increasingly negative rhetoric following the Labor Law Reform Act’s death-by-filibuster during the Jimmy Carter administration, which had promised to cut down on employers’ wanton violations of the NLRA primarily by bolstering the NLRB’s available remedies.

Those shortcomings persist today. As decreed by the Supreme Court, the Labor Board is without power to order punitive damages against violators of the law. It cannot compel parties to agree to any contract provisions, even ones that employers deliberately stonewall negotiations over. It cannot ban the use of permanent replacements, offensive lockouts, or management rights clauses. It cannot prevent employers from closing their plants for explicitly anti-union purposes and must allow the vast majority of partial closings to be completed without any sort of bargaining input from the affected unions. It must cede authority to commercial arbitration, federal immigration laws, and the vast universe of employers’ state property rights.

When the NLRB has attempted to aggressively enforce the principles of the NLRA, the agency invariably attracts the ire of management lobbies and, soon after, conservative politicians. The Smith Committee hearings in 1940, chaired by arch-segregationist Howard W. Smith, led to the gradual purge of suspected communist influence at the Labor Board and set the stage for what would become the Taft-Hartley amendments. The Clinton Board’s increased use of the NLRA’s discretionary injunction remedies against anti-union activities led to a proposed 30 percent cut in the agency’s budget by Newt Gingrich’s House of Representatives and the eventual decline in the use of this tool. The Obama Board’s issuance of a complaint against Boeing for clear retaliation against union strike activity created an uproar in the Republican House, forcing the agency to spend a significant amount of time and resources defending what was a cut-and-dry reading of the law. The Obama administration additionally saw unprecedented levels of obstruction in its Labor Board nominations that resulted in multiple Supreme Court cases.

Thus from everything I have described, the NLRB appears to be an emasculated husk of an archaic institution. The agency is underfunded, understaffed, underpowered, and prone to congressional influence when it dares raise its head out of its foxhole. Most damningly, the Labor Board’s cultural footprint today is basically zero. Few workers know of its existence, let alone what it regulates or offers to potential complainants. As an example, mandated pay secrecy is ubiquitous in American workplaces despite its obvious violation of the protections afforded workers by the NLRA. These are easy cases for NLRB field attorneys to investigate and prosecute, but few such charges are ever filed. (Unlike more recent workplace legislation, including Title VII of the Civil Rights Act, the Occupation Safety and Health Act, and the Americans with Disabilities Act, the NLRA does not mandate that employers maintain notices informing employees of their statutory rights. Only violators of the law must do so, and even then only temporarily.)

So why am I here in your inbox basing an entire blog around this entity? Am I a sycophant? Am I delusional? Or am I just bored during a pandemic?

All three of things may be true, but I would still argue that the NLRB is a vessel of untapped potential that anyone left of the political center should embrace with open arms. It, in so many words, does matter.

The NLRA is the only federal law that focuses upon the enshrinement and protection of collective (rather than individual) rights. As labor law scholars have argued for generations, individual rights have historically only been secured through the exertion of some sort of collective action. Crucial, then, is the fact that the NLRA’s critical language—Section 7’s pronouncement that employees may “engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection”—is worded extremely broadly. This provision can be adapted by the NLRB to virtually any modern economic circumstance. The Obama Board’s application of Section 7 to employee use of social media is but one recent example.

Moreover, the Labor Board’s status as a universal provider of free, experienced lawyers to prosecute one’s employer is, in my view, a borderline radical concept that is seemingly taken for granted in today’s legal environment. Whereas most vindications of employment rights require a worker to search for legal representation and run the gauntlet of the conservative federal judiciary, filing an unfair labor practice charge takes only minutes and can be completed without any sort of negotiation for services. Liberals, progressives, and socialists alike should uniformly embrace this sort of legal framework which safeguards public (rather than private) rights.  

And for all of its flaws, the NLRB is still capable of protecting workers in even the most dire of circumstances. I’ll use an example in history that I believe to be seriously under-discussed among labor law scholars. The 1990s labor dispute between Caterpillar and the United Auto Workers was one of the most bitter conflicts in labor history, expending nearly every economic weapon in the parties’ arsenal while turning central Illinois into a self-described “war zone.” The initial strike lasted five months and was busted when Caterpillar threatened to hire permanent replacements for the thousands of union members out on the picket lines. Upon returning to work without a new collective bargaining agreement, the UAW attempted to win its demands from within by engaging in a massive “work-to-rule” campaign which—by workers doing only what the contract absolutely required them to—gummed up production and invited management discipline. Caterpillar foremen routinely overreacted to these displays of insurrection and made examples of the more open union supporters in the plants. This led to an avalanche of unfair labor practice filings with the NLRB. Between November 1991 and March 1998, the UAW filed 877 charges and the Labor Board issued 443 complaints, record figures stemming from any single labor dispute.

Following another unsuccessful strike from June 1994 to December 1995, the UAW had nothing left to leverage against Caterpillar other than the mountains of Labor Board litigation piling up with each passing day. The estimated bill for backpay for UAW discriminatees was estimated by agency officials to be in the hundreds of millions, and this didn’t account for the cost of actually defending these cases. More importantly for Caterpillar, it could not move forward with its long-intended closing of its York, Pennsylvania plant because it was unable to bargain to impasse on the closure so long as the unfair labor practice allegations remained outstanding. The world’s leading construction equipment manufacturer was stopped in its tracks despite having convincingly won the economic war with its union.

The conflict only ended when the UAW agreed to settle the unfair labor practice charges in exchange for a new contract. The union had been on its last fumes. By the spring of 1998, the UAW had spent upwards of $200 million of its strike fund and had gone over six years without a functioning grievance-arbitration system or dues-checkoff provision. Without the NLRB’s dutiful refereeing of the dispute, there is significant reason to doubt whether the once-mighty UAW would have survived at all at Caterpillar. (Disclaimer: I am currently writing a law review article on the Caterpillar-UAW labor dispute which rests on this very conclusion.)

To be clear, I am not attempting to exaggerate the NLRB’s contributions as a “referee” of modern labor relations. Even in my given example, the UAW capitulated to what was seen as a backbreaking contract in 1998, and the union’s presence at Caterpillar today is greatly diminished from its heyday. Management’s most devastating decision in the dispute—the threat to hire permanent replacements for the UAW’s economic strikers—was perfectly legal under Supreme Court and NLRB case law. The Labor Board could only protect the union at the margins.

But even in this defeat there exists reason to have hope for the NLRB as an institution. Throughout the labor dispute, UAW members repeatedly invoked the NLRA’s protections on the shop floor and in the media as reasons to continue their fight for a new contract. The Illinois locals kept scoreboards outside their union halls which tallied the total number of complaints issued by the Peoria regional office against Caterpillar’s alleged violations. Workers wore homemade t-shirts emblazoned with language from the NLRB complaints themselves to taunt Caterpillar for its transgressions. The hearing transcripts were replete with testimony from workers who claimed Section 7 sanctioned their militant job actions.

For a brief time in history, years after the head of the AFL-CIO had damned the Labor Board as a failed experiment, workers still looked to this agency as a vindicator of the rights they based their collective struggle upon. True, labor law reform is decades overdue in plugging the NLRA’s many holes. But adopting even some of the recommendations I made in my November 8 post would bring the NLRB closer to succeeding in its mission to encourage collective bargaining.