It’s hardly coincidental that the “oscillation” became more commonplace after presidents began taking a different approach to NLRB appointments. During its first 40 years, presidents tended to appoint fairly neutral and respected mediators and academics and government lawyers.
That changed dramatically in the 1980s, when Reagan appointed a management lawyer who had complained publicly of the NLRB’s pro-union bias and a labor consultant who helped companies beat back union organizing drives. Since then, the tendency has been toward nomination of either staunchly pro-management or pro-union advocates. President George W. Bush used a recess appointment to install an executive of the U.S. Chamber of Commerce on the board, and President Obama has returned the favor with the former general counsel of the Service Employees International Union.
Whatever else you might say about these appointments, on their face they are hardly the sort to build public confidence that this quasi-judicial body will be neutral and impartial in deciding cases and adapting to the modern economy a labor law last amended, in any serious fashion, in 1947. The insistence on nominating strong advocates for one side or the other now makes it difficult, if not impossible, to win confirmations from an increasingly partisan Senate. A few years ago, this problem got so bad that 600 decisions were issued by a board that consisted of two people, all of which were declared invalid when the Supreme Court ruled that a minimum of three was required for a quorum on the five-member board.
And from there it’s only gotten worse.
The acting general counsel of the NLRB — arguably the agency’s most powerful position — is Lafe Solomon, who has spent his entire career as a staff attorney at the board, serving as counsel to both Republican and Democratic members. Recently, Solomon announced that his office would be more aggressive in seeking court injunctions against employers who try to beat back organizing campaigns by firing the employees leading them, which has become the favorite tactic for defeating unionization. Solomon’s reward for trying to enforce the labor laws is that he is now routinely denounced as a tool of “union bosses” by a number of business groups and called a “pinhead” by Bill O’Reilly while his nomination is now threatened by an almost-certain Senate filibuster.
Then, two weeks ago, anti-labor members of the House moved to strip the NLRB of its funding, with the chief sponsor telling his colleagues that the agency is a job-killing “New Deal relic.” Although defunding would have the effect of repealing the right to collective bargaining in the United States, it managed to get 176 Republican votes.
And of course there’s Wisconsin, where a newly elected Republican governor, with a newly elected Republican legislature, aims to “make history” by stripping public-employee unions of their collective-bargaining rights. Such “history,” of course, would last only until the next time Democrats come to power, when collective bargaining would inevitably be restored and expanded.
Sunnis and Shiites.
This is not the way things are supposed to work in an advanced industrial economy in a democratic society. Yes, elections have consequences. But winning an election by a couple of percentage points is not a license for repeal, revenge and permanent one-party rule.
Along with the authority to govern, political victory also carries with it the responsibility of stewardship over a system of rules, institutions and accepted norms of behavior that took centuries to develop, that are the reason for our success and that are now the envy of people in places such as Libya and Egypt.