Since 1935 it's been the job of the NLRB (National Labor Relations Board) to enforce the provisions of the landmark National Labor Relations Act (better known as the Wagner Act). The Wagner Act is the New Deal legislation that created the NLRB and governs such things as union elections, unfair labor practices (ULPs) and collective bargaining.
While there have been ideological skirmishes over the years, the NLRB has managed to take its cow to market under the Republican administrations of Dwight Eisenhower, Richard Nixon, Gerald Ford, Ronald Reagan and George H.W. Bush. Indeed, it wasn't until George W. Bush became president that things got really ugly. And now, under Barack Obama, things have gotten way uglier.
Since the Taft-Hartley Act (1947), the NLRB is required to have five members on its panel, all of whom are appointed by the president. The panel usually breaks along party lines, typically with a 3-2 split in favor of the White House. In the absence of all five members, the board is still able to conduct business, so long as it has a quorum, which is a minimum three members.
But when there are fewer than three members, the board can't act. In the absence of a quorum, the board can't conduct any important business. It can't come to the aid of workers illegally discharged for union activism; it can't insist that employees be awarded back pay for overtime hours they were cheated out of; and it can't settle ULPs filed during contract negotiations, no matter how egregious. Without a minimum of three members, the board can't do much of anything.
As it stands today the NLRB consists of just three members, the bare minimum. They are Mark Pearce and Craig Becker, both Democrats, and Brian E. Hayes, a Republican. The reason there are only three is because the Republicans in Congress have steadfastly refused to install anyone who remotely resembles a pro-union vote. In fact, Craig Becker himself is a "recess appointee" (appointed by Obama while Congress was out of session), whose term expires at the end of the year.
Given how much the Republicans despise the NLRB -- given how contemptuous they are of the 76-year-old federal institution that was created specifically to guarantee the rights of working people -- what will they do when important votes come up? With this discouraging 2-1 Democratic majority staring them in the face, how will the Republicans respond?
Answer: They will tear down the edifice. It's true. Brian E. Hayes, the lone Republican panel member, has threatened to resign, thus paralyzing the NLRB. They would rather deprive the Board of a quorum -- cripple it, render it powerless -- than allow the Democrats to get a leg up. Not exactly your standard definition of "teamwork."
While no one knows if Hayes will follow through with his threat, President Obama should seize the opportunity, go on national TV, and expose the Republicans for the blatant obstructionists they are. After all, nobody likes a quitter, and Hayes' outrageous threat could only serve to embarrass his party. But, alas, direct confrontation doesn't seem to this president's cup of tea. Which, arguably, is partly why we're in the mess we're in.
David Macaray, a Los Angeles playwright and author (It's Never Been Easy: Essays on Modern Labor), was a former union rep. He can be reached at firstname.lastname@example.org