Any worker who considers organizing a union will likely come across the National Labor Relations Board, the federal office responsible for managing organized labor. It is considered the starting point for organizing a union “the right way”, and it is generally accepted in the labor movement as a positive influence. Supposedly, it is the legal backbone of the labor movement, and its continued existence is beyond question. But what exactly is its purpose, and what does it actually accomplish?
The National Labor Relations Act of 1935, also known as the Wagner Act, established the NLRB as it exists now. The text of the law states, “It is declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions . . . .” Its purpose is clear: the prevention of work stoppages. The NLRB was set up in the context of massive strikes, including city-wide general strikes, that had resulted in open warfare between workers and their enemies. The NLRB was supposedly a neutral third party to mediate these conflicts, but in fact its singular goal was the prevention of further strikes. Was it successful to this end? In hindsight, it was massively successful. According to the Bureau of Labor Statistics, in 1934 almost one and a half million workers went on strike. In 2022, barely more than a hundred thousand workers went on strike, despite a much larger population and workforce. There have been massive declines in the number of strikers, as well as in union membership overall, in both relative and absolute terms.
It would seem then, that the NLRB is not helping organized labor. But how could it be otherwise given its stated purpose and its actual powers? According to the NLRB’s “Basic Guide”, it’s utterly powerless against corporations:
Powers of the NLRB. To enable the NLRB to perform its duties under the Act, Congress delegated to the Agency certain powers that can be used in all cases. These are principally powers having to do with investigations and hearings.
Powers concerning investigations. As previously indicated, all charges that are filed with the Regional Office are investigated, as are petitions for representation elections. Section 11 establishes the powers of the Board and the Regional Offices in respect to hearings and investigations. The provisions of Section 11(1) authorize the Board or its agents to:
• Examine and copy “any evidence of any person being investigated or proceeded against that relates to any matter under investigation or in question.”
• Issues subpoenas, on the application of any party to the proceeding, requiring the attendance and testimony of witnesses or the production of any evidence.
• Administer oaths and affirmations, examine witnesses, and receive evidence.
• Obtain a court order to compel the production of evidence or the giving of testimony.
The Act is remedial, not criminal. The National Labor Relations Act is not a criminal statute. It is entirely remedial. It is intended to prevent and remedy unfair labor practices, not to punish the person responsible for them. The Board is authorized by Section 10(c) not only to issue a cease-and-desist order, but “to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of this Act.”
The NLRB openly admits that it has no power to punish people who are committing unfair labor practices. Rather, it is “remedial”. And what has it accomplished to this end? For all of 2021, it recovered $57 million and offered reinstatement to 6,307 workers. $57 million recovered—and all it took was a $285 million budget! $57 million recovered—out of $15 billion stolen from workers in minimum wage violations alone! But what can the NLRB do with such limited powers as “investigation” and “hearing”? The sad reality is, the NLRB would do more for workers if it was completely liquidated and its budget was given away as charity.
Why, then, do many so-called labor organizers support the NLRB, and the PRO Act in particular? For instance, a Labor Notes article by Gay Semel from July 6, 2022 claims the NLRB is “underfunded and understaffed” and that this is a “big threat to the current organizing wave”. How much money and staff the NLRB has, however, does not mean anything given its stated mission and its actual legal powers. Such a claim is even more bizarre given the NLRB’s complete helplessness during the last few decades of union membership plummeting. No, Semel is a lawyer by trade: he wants the NLRB to be funded because he wants to be funded. And in fact that is who runs and who benefits from the NLRB, whose main feature (and the reason it is supported so rabidly by non-laborers) is it provides a legal framework for obligatory dues payments. It is lawyers who reap the most from the NLRB, not “labor”, and in fact that is who runs it now, the career lawyer and Democrat (although she was renominated by Trump) Lauren McFerran.
The whole point of a union is to secure more favorable terms for the workers who belong to it, and this cannot be done without controlling the buying and selling of its members labor power. Obviously, this contradicts the NLRB, whose entire existence is based on preventing interruptions in the selling of labor power. In this sense, the NLRB-sanctioned unions are not unions at all, as their members have no control over when they do and do not work. They are more like an additional tax that some workers have to pay in exchange for keeping their job and sometimes certain benefits. This tax revenue is then distributed to a swollen middle class of lawyers, party hacks (and there is a lot of overlap between the Republican and Democratic party nominations to the NLRB), and union officials. If there is to be a genuine labor movement in the US, it must stay as far as it can from the NLRB. The absolute best-case scenario for an organizer trying to use the NLRB to their benefit is they get fired and are reinstated after a lengthy legal process. Realistically, all it will lead to is wasting time and money. The JFK8 Amazon workers are an unfortunate example to this end. They did everything “the right way”, the NLRB certified the election victory of the Amazon Labor Union, and yet they have won absolutely nothing for the workers and cannot even get Amazon to negotiate a contract. There is no shortcut: either organize workers to withhold their labor, or do not. The middle-ground approach of the NLRB, i.e. organizing but not for the purposes of withholding labor, only leads to a dead end.
Sources:
https://www.nlrb.gov/guidance/key-reference-materials/national-labor-relations-act
https://www.usaspending.gov/agency/national-labor-relations-board?fy=2021
newlaborpress.org 