Vice President, Labor Policy, U.S. Chamber of Commerce
August 21, 2023
According to a recent news report, leaders in organized labor have become frustrated over the failure of the U.S. Senate to confirm the re-appointment of Gwynne A. Wilcox, one of three Democrats currently on the National Labor Relations Board (NLRB). Despite hopes at the time of the report that the Senate would act prior to its August recess, that did not happen. Consequently, Wilcox’s term will expire on August 27 before the Senate returns, dropping the Board to a 2-1 Democrat majority.
Union officials are seemingly concerned her absence will thwart the advancement of a pro-union agenda. As one labor leader lamented, it is “certainly in the interest of the unions … to have a functioning board with good, strong, pro-worker advocates. The NLRB is supposed to make it easier for workers to organize, not harder.”
There are two problems with such complaints from union leaders. The first is that being pro-union is not the appropriate role for the NLRB, which is supposed to be neutral, not biased in favor of unions. Yet, it is a common misconception that even President Biden repeated by saying, “the policy of the federal government has been to encourage worker organizing and collective bargaining, not to merely allow or tolerate them.”
As a recent report from the Competitive Enterprise Institute notes, “the claim that the NLRA [National Labor Relations Act] was meant to encourage unionization is contrary to the repeated claims of the late Sen. Robert Wagner, a New York Democrat and author of the law.” Instead, the NLRA attempted to strike a balance between providing the right to bargain collectively through a union while at the same time ensuring workers are free not to do so either.
The NLRA mentions “encouraging” collective bargaining as a means to avoid the disruptions in commerce due to labor unrest that existed at the time the law was passed in 1935, which is quite different from the proposition that the federal government should be tilting policies in favor of unions. That notion is antithetical to facilitating a stable labor policy landscape.
The second problem with labor leader’s lamentations is that the NLRB is fully capable of operating with a 2-1 composition. One labor official dubiously opined that “[i]f Wilcox is not confirmed, it will have a negative impact without a doubt on the ability of workers for their rights to be protected … because the NLRB for all intents and purposes won’t be able to operate the way it normally would otherwise.” While it might not be able to move forward with anti-employer regulations, a 2-1 Board will not prevent the agency from doing its job.
Moreover, there are two open seats—one from each party— and pairing Republican and Democratic nominees for NLRB seats is a long-standing Senate tradition that helps maintain balance in labor law and allows for bipartisan confirmation votes. So far, no one has been nominated to fill the open Republican position, but rumor has it a name is being vetted. As such, there should be no rush to confirm Wilcox on her own. Pushing forward such a strategy will set up a needlessly partisan and acrimonious vote. With all the issues dividing our country, that’s the last thing we need right now.