Recently there has been much congressional skirmishing over the funding of the National Labor Relations Board, often referred to as simply the “labor board.” During the last year or so President Obama’s recess appointments to the labor board have also been widely discussed. But I am not especially interested in the details of the latest Republican defunding scheme or whether the President’s recess appointments were “legal.” I have a much more fundamental question to pose. Why, exactly, does the labor board matter? I will state up front that I believe that for workers the labor board matters very little. If you listen to the rhetoric offered by the Democratic Party elite when the labor board is threatened in a serious way you might draw exactly the opposite conclusion.
To understand why I hold the opinion that the labor board is of little practical significance to workers I will have to explain the labor board’s extremely limited powers. The labor board enforces the National Labor Relations Act, a law supposedly preventing employers from “interfering” in various ways with employee decisions to engage in “protected concerted activities” or unionization. In the interests of brevity I will say of the Act that it says it protects the unionization process. But forget about what it says. The letter of the law means almost nothing without remedies, and the Act has no significant remedies. No fines. No damages. The grandest purported power of the labor board is probably its authority to reverse workplace decisions made by employers without bargaining with their union-represented employees. This sounds mildly impressive until you get the rest of the story. Under the Act employers are never required to agree to any union or employee proposal, and can simply unilaterally implement bargaining proposals their employees’ unions have rejected once the sides have reached a bargaining “impasse.” That sounds crazy, but it is true. It has always been true of American labor law.
The Act also says that employers can’t fire employees for engaging in union activity, and employers engaging in such conduct may be ordered to reinstate affected employees and give them the very unimpressive remedy of “backpay.” But backpay owed is subsequently, and to my mind outrageously, diminished, or “mitigated,” by wages employees earn at later jobs obtained after being illegally fired. Thus, in the real world, mitigated backpay seldom amounts to more than a couple of thousand bucks per fired employee, small beans to well-heeled employers dedicated to remaining “union free.” Employers also know that they will likely not have to reinstate employees, who routinely “waive” reinstatement because they know they will just be discriminated against when they return to work and will likely be fired again. And with a measly $2,000 in the balance, why wouldn’t anti-union employers fire them again? My friends, the labor board is toothless.
But what interests me more is that Republicans, Democrats, and savvy unions have known for some time it is toothless. So why all the theater when the labor board’s existence is threatened? We know how much Republicans enjoy a good, base-rallying boogeyman, and the labor board has been a serviceable boogeyman. But what explains the Democrats’ (and often the “professional” left’s) sometimes passionate rhetoric denouncing “attacks” on the labor board? Given how little the labor board is authorized to do, why do Democrats pretend the sky is falling? My cynicism suggests that as a corporate party the Democrats, and that portion of the “acceptable” left attached to the Party’s hip, simply do not want people to know how weak labor “protections” in the U.S. really are. Imagine the questions that might be asked if the labor board collapsed tomorrow and absolutely nothing happened. Imagine the whole question of labor rights being reopened, without the distraction of a toothless labor board and the professed need for labor law “tweaking.” Imagine the very idea of mere tweaking being out of bounds, as it was for the structural-reform-minded labor movement during the 1930s. Imagine the day when the working class sees clearly how little “mainstream” labor law offers (or has ever offered). Imagine the Labor Day party we can have then.