Dark Days But a Ray of Hope for Embattled Workers

The Democrats in Congress have sold out their supporters in the labor movement by giving up the so-called "card-check" feature of the embattled Employee Free Choice Act, which makes the "reform" legislation that has been billed as labor's "number one issue" much less of a reform. Instead of being hammered into line on this issue by party leaders and by President Obama, who has long pledged to back EFCA, conservative Democrats in the House and Senate were allowed to join Republicans in opposing the measure, leading to its replacement with a vague plan to require quicker secret-ballot elections in union-organizing drives.

But largely unnoticed by the corporate media, there has been some really important good news for working people and the labor movement: the appointment of three people to fill the long-vacant empty seats on the five-member National Labor Relations Board, which has the ultimate job of adjudicating issues under the National Labor Relations Act.

The Bush administration had basically gutted the NLRA by simply failing, since 2007, to fill the three seats that had been emptied as prior board members' five-year terms had expired. This had left the NLRB with only two members, one a Democratic, pro-labor appointee, and one a Republican pro-management appointee. Since these two members would vote on opposite sides of most issues, the only issues they ended up issuing decisions on were 400 particularly egregious cases, where they could both agree-and most of those are still in legal limbo since they have been challenged in court on the basis that board rules require a three-member quorum.

The Obama administration, in April, announced three new appointments to fill the vacant seats, while the current Democratic member of the board, Wilma Liebman, was elevated to NLRB chair, replacing the incumbent Republican, Peter Schaumber.

The new members, two Democrats and one Republican in accordance with a long tradition of presidents keeping minority representation on the board, are Craig Becker, Mark Gaston Pearce and Brian Hayes. Becker, currently an associate general counsel to the Service Employees International Union, was appointed to a term that expires in 2014. Pearce, a private attorney from Buffalo, NY specializing in representing labor law from the labor side, was appointed to a term that expires in 2013. Hayes, currently the Republican labor policy director on the Senate Committee on Health, Education, Labor and Pensions, previously worked as a labor law attorney with a firm that exclusively represents management.

The appointments gives unions and working people a solid 3-2 majority on the NLRB for the first time in almost a decade, and ends a period in which the board has essentially been sidelined, leaving unions and workers with little recourse as employers have worked to undermine existing contracts and squelch new organizing drives.

One of the primary functions of the NLRB in enforcing labor laws has been responding to unfair labor practice charges filed by unions and workers and to anti-union actions taken by managements. Because of the Bush/Cheney administration's refusal to fill vacant seats, the board was largely unable to resolve those disputes-a situation that has led to a proliferation of illegal actions against workers and unions by corporations.

The firing of union organizers, the intimidation of workers who support unions, the hiring of permanent replacement workers (scabs) during authorized strikes, the refusal to hold elections after the submission of cards supporting a union by a majority of workers in a workplace-all illegal-have become commonplace in America during the Bush/Cheney years, in no small part because the NLRB had become virtually dysfunctional.

At this point, the board still has only two members, as the Senate still needs to ratify the nomination of the three additional board members. So far, there is no sign that Republicans will attempt to block the appointments, which the Obama administration plans to submit as a package. "I think this will be a straight shot for all three members," says David Parker, deputy executive secretary of the NLRB.

The only way these nominations would fail would be if some of the same conservative Democrats in the Senate who have betrayed workers by refusing to support, and ultimately killing, the card-check provision of the EFCA were to side with Republicans in blocking them.

This seems unlikely, but given the sorry history of the Democratic Party in terms of betraying historic progressive traditions and in betraying key supporters, and given President Obama's evident desire to avoid conflict with Republicans and conservative members of his own party in Congress, anything is possible these days.