Ever since Scott Walker took over as governor of Wisconsin in 2011 the Republican strategy has been to throw everything at workers at once, overwhelming their ability to resist. This strategy has led to the rapid repeal of worker rights in states such as Michigan, Iowa, and Missouri. It also been wholeheartedly adopted by the Trump appointees to the National Labor Relations Board. This is a good overview of the rapid repeal of Obama-era labor decisions, even when employers haven’t even bothered to ask for them. Warning: it’s incredibly depressing.
In recent years, the end of a National Labor Relations Board member’s term occasioned an odd death watch for controversial precedent. Last week, Board Chair Phil Miscimarra finished his term with a flurry of big decisions, including five cases that overturned very significant precedent.
In every one of the precedent-reversing cases, the Board split along political lines with the Republican majority having its way. The breadth of the carnage was unexpected in light of the fact that this majority has been together only since the end of September. Moreover, several of these cases were amenable to decision without reversing Board precedent. Instead of observing the venerable principle that adjudicators should resolve cases without addressing precedent if possible, the soon-to-vanish majority reached out to manufacture opportunities for their disruptive decision making.
Most significantly, breaking with the Board’s long precedent, in none of these cases did the Board accept input from the public through a hearing or solicitation of amicus briefs. Three of the cases that the Board overturned last week had been decided only one or two years ago and thus the impact of those decisions had yet to be analyzed through cases applying them. In fact, in several of the cases, the Board didn’t even have the parties’ view on whether to reverse precedent — the parties themselves didn’t ask the Board to reverse precedent and the Board didn’t even bother to slow down long enough to get additional briefing. Instead, the Board delivered surprise gifts to those respondents.
Taking all of these attributes together, the point of the Board majority’s exercise during the past week seemed to be to rush to set the clock back on workers’ rights as much as possible before they temporarily lost their majority while waiting for Miscimarra’s replacement, no matter the quality of the available vehicles or consistency with long-standing process designed to support reasoned decision making.
The article goes on to detail the various cases, which you can read. The important takeaway is that Republicans simply do not care about norms. They want to repeal every workers’ right they can, daring Democrats to reinstate them when they take power back. The long game is that it is a lot easier to destroy rights than create them and Republicans know that even if they don’t win every battle, in the long term, they have the advantage so long as they can win power half the time or more. So far, that’s worked out pretty well for them in the last 50 years.