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Will Corporate America Succeed in Killing Workers' Rights and the NLRB?

NLRB No Path to Justice
Social Media and the Workplace

Workers’ right to use social media to discuss work is just one of the hundreds of NLRB decisions that could be revoked. In a series of recent rulings, the NRLB has said employees have a right to discuss workplace conditions freely and without fear of retribution on Facebook, over Twitter or using any other online forum. It’s reinstated a number of workers who’ve been fired for airing their (often negative) opinions of their employers on social networks. But if Republicans and Big Business get their way, these vital protections that help workers communicate with one another to better improve wages, benefits and work conditions could disappear.

The National Labor Relations Board (NLRB) was established in 1935. It is the enforcement agency for the National Labor Relations Act, the principal labor law regulating private sector employment. The Board has five members nominated by the President, and confirmed by the U.S. Senate. Currently there is only one confirmed NLRB member, but the Board needs at least three to make decisions.


From January 2008 to March 2010, the NLRB operated with just two members because Republicans blocked the President's nominations by refusing to permit the Senate to vote to approve the nominees. The Board members issued hundreds of decisions on cases where they could agree; other cases were set aside. In June 2010, the U.S. Supreme Court ruled that the two-member Board did not have the authority to decide cases and said three was the minimum required for a functioning Board.

Senate Republicans continued to block a vote on the Presidential nominations to the NLRB. Their silent filibuster was effective in preventing Senate action on these nominees. As a result, on Jan. 4, 2012, President Obama made three recess appointments to the NLRB: Sharon Block (D), Richard Griffin (D) and Terence F. Flynn (R). These three members joined Chairman Mark Pearce (D), whose term expires in August 2013, and Brian Hayes (R), who left the Board in December 2012.

Senate Republicans argued that the Senate had not formally recessed, but stayed in "pro forma" session even though no business took place. Every President has made recess appointments; more than 300 such appointments were made by Presidents Reagan, Clinton, Bush 41 and Bush 43 and Obama.

On Jan. 25, 2013, a three judge panel of the US Court of Appeals for the District of Columbia Circuit ruled that President Obama's recess appointments were invalid. The three-judge panel -- all appointed by Republicans -- issued a radical, sweeping ruling that virtually eliminated the ability of a president to make recess appointments. Ironically there are four vacancies on the Circuit Court because Republicans have filibustered the confirmation of these judges as well.


The appeals court ruling leaves just one confirmed member on the Board, and the Supreme Court has ruled that three members are required for the Board to function. This means that the law that is supposed to protect workers' rights to organize, collectively bargain, and engage in collective actions is not enforceable.

This leaves American workers without any legal protections provided under law.

The only way to have a functioning NLRB is for the Senate to confirm the President's nominations. That's unlikely, given the determination of Senate Republicans to filibuster just about every nomination, especially those to the NLRB, to judgeships and to the new consumer financial protection bureau.

Workers are left with no redress for workplace injustices, creating a "wild west" situation where employers can do whatever they want.

For example, in 2008, a NLRB administrative law judge issued a scathing decision against CNN, finding that the network created a phony reorganization solely to get rid of workers because they had union representation. The judge ordered CNN to reinstate 110 workers, restore the economic losses of all 250 workers and recognize and bargain with NABET-CWA. Those technicians still don't have their jobs, their back pay or their union. And with the NLRB in limbo, as it is today, they see no path to justice.

Employers now are challenging decisions made by the NLRB, arguing that since the recess appointments were ruled invalid, that those decisions should be vacated.


President Obama must submit to the Senate a full package of NLRB nominees -- three Democrats, two Republicans and a general counsel.

The Senate Democratic Majority then must move the nominations through the HELP Committee as soon as possible.

The nominations are then moved to the Senate floor for a vote.

If, as expected, Senate Republicans abuse the Senate rules and filibuster the nominees, Senate Majority Leader Reid must be ready to take necessary action to overcome the filibuster.

That means putting together a package of nominations for judgeships, the Consumer Financial Protection Bureau (CFPB) and the six nominees to the NLRB, and moving their confirmations. He would have two choices: (1) keep the Senate in session around the clock while the Republicans filibuster the nominees; or (2) Utilize extraordinary parliamentary procedures which would permit confirmation with a majority vote.

Majority Leader Bill Frist (R) took this exact action in 2005 to get President Bush's judicial nominees confirmed. The Republican Policy Committee labeled this the "constitutional" option at the time although it has been come to be known as the "nuclear" option.