The National Labor Relations Board is a federal agency that has the exclusive power to enforce much of America’s labor law. If an employer tries to unlawfully intimidate workers against joining a union, or if it retaliates against pro-union workers, or if it refuses to bargain with its workers’ union, the NLRB is responsible for enforcing the law against that employer. Yet, if a bill introduced by Senate Minority Leader Mitch McConnell (R-KY) and Sen. Lamar Alexander (R-TN) — the top Republican on the Senate committee responsible for labor issues — were to become law, then the NLRB would likely become a stagnant, often frozen institution that could be unable to act in the face of flagrant violations of the law.
Although the NLRB’s members are not federal judges, the Board functions very much like a court. The Board has five members who release published opinions that are cited as precedents in future cases that come before the NLRB. When the members of the Board disagree, the view held by a majority of the Board’s members prevails, and the members in the minority may publish a dissenting opinion. Board members serve five year terms, and, when vacancies arise, new Board members are typically selected to maintain a 3–2 partisan divide with the party that controls the White House also controlling a majority of seats on the Board.
One advantage of this arrangement is that, when the NLRB is faced with an issue that divides its members along partisan lines, the three members in the majority can out-vote the two members in dissent, thus ensuring that the business of the Board continues. McConnell and Alexander’s bill would change this by adding an additional seat to the Board, which would be controlled by the opposition party. Thus, either party would be able to veto any action the Board wanted to take, because neither party would control a majority of the Board’s seats.
If this arrangement sounds familiar, that’s because it is. The Federal Election Commission is one of the most ineffective institutions within the federal government, largely because it is a six member agency with each party controlling three seats. Thus, the FEC’s Democrats can block any action that may aid Republicans, and its GOP members can do the same for actions that could benefit Democrats. As Trevor Potter, a former Republican member of the FEC explains, in recent years “most important votes at the FEC have resulted in partisan 3-to-3 ties, leaving the commission essentially unable to act.”
If the NLRB became similarly gridlocked, it’s likely that management would benefit at the expense of labor. Although the NLRB does have authority over certain unfair labor practices by unions, such as if a union engages in a strike for an illegal purpose, the bulk of federal labor law benefits workers and their unions. Indeed, without a fully functioning NLRB, the Board would not be able to enforce an employer’s legal obligation to bargain with its employees’ union, nor would it be able to stop an employer from firing pro-union workers or from spying on union gatherings. Workers could effectively lose most of the benefits of belonging to a union (unionization raises workers’ wages by about 12 percent, according to one study) and many of them could simply decide that they were better off quitting the union while the NLRB refuses to allow the union to do its job.