MS. DIANE REHMThanks for joining us. I'm Diane Rehm. Since its inception 80 years ago, the National Labor Relations Board has overseen disputes between labor and business, but for the past 10 years, the agency has not had a full panel of Senate-confirmed members. A compromise reached Tuesday will make the NLRB fully operational again, but it remains politically controversial.

MS. DIANE REHMJoining me to talk about the National Labor Relations Board, Lynn Rhinehart of the AFL-CIO, Joseph McCartin of Georgetown University and James Sherk of the Heritage Foundation. I do invite your calls, your comments, questions. Join us on 800-433-8850, send us an email to drshow@wamu.org, follow us on Facebook, or send us a tweet. Good morning to all of you. Thanks for being here.

PROF. JOSEPH MCCARTINGood morning, Diane.

MS. LYNN RHINEHARTIt's great to be here.

MR. JAMES SHERKGood morning. Thank you.

REHMGood to have you all here. Joseph McCartin, if I can start with you, give us a little of the background why the NLRB was created and what it is supposed to do now.

MCCARTINRight, Diane. Well, the NLRB is basically the Supreme Court of American labor relations. It was created in 1934, actually. It's even older than the Act that it -- is created to enforce. There was something called the old NLRB which came out of Franklin Roosevelt's program, the National Industrial Recovery Act of 1933, created in the midst of the great Depression to try to help the country recover from that Depression.

MCCARTINThat act included an important provision called Section 7-A which gave workers the right to organize and bargain collectively, but there was no enforcement body created to make sure that that right actually existed. After some time, the need to create a body became clear. In 1934, a body was created called the National Labor Relations Board, but then the NIRA, the act that led to this itself, was declared unconstitutional for reasons not related to its labor policies in 1935.

MCCARTINOnce that happened, Congress passed a new law the National Labor Relations Act, it's known as the Wagner Act named after Sen. Robert Wagner who drafted it. And from 1935 on, the NLRB which was newly constituted to enforce that act became in effect the governing body of American labor relations.

REHMAnd what is it supposed to do now?

MCCARTINIt's supposed to protect the rights that workers and employers have in the American labor relations system. The NLRA which was passed in 1935 granted workers some clear rights to be able to organize and collectively bargain. The board protects those rights or it's supposed to. In 1947, the National Labor Relations Act was amended by an act called the Taft-Hartley Act, and that granted employers some rights.

MCCARTINAnd the NLRB is to enforce those rights as well. So it oversees American labor relations. It hears complaints from both workers and employers, and it applies the law in those cases and decides what's the best outcome when a complaint has been filed.

REHMLynn Rhinehart, why is the NLRB so important?

RHINEHARTThe NLRB is important and the NLRB is an agency that so many people in America have never heard of, don't know about, don't know why it's important, so I'm really happy we are having the opportunity to have this discussion this morning.

RHINEHARTThose initials, NLRB, National Labor Relations Board, stand for an agency that enforces a law that, as Prof. McCartin said, protects the rights of all private sector American workers to join together, whether or not they have a union, to join together to try to make improvements at their workplace and to address issues that they have at their workplace.

RHINEHARTThose rights are enforced by the National Labor Relations Board. Workers are allowed to -- they have the right to come together to approach their employers and advocate for whatever it is that is important to them to make positive change at their workplaces, whether it's a health and safety issue, trying to get paid sick days, a raise.

RHINEHARTThe National Labor Relations Act protects those rights whether or not workers have a union. It also protects the right to organize unions, as Prof. McCartin said, a very important part of what the NLRB protects. But it's a law that protects all workers all across America. So the idea of not having that agency there to enforce this law was a very scary proposition for worker advocates.

REHMI gather it also, as Prof. McCartin said, protects employers as well.

RHINEHARTYes. It does protect employers as well, and it's central to making our system of labor relations work in this country. The labor board adjudicates disputes between labor and management, and it adjudicates complaints against unions when employers allege that unions have committed unlawful acts as well as complaints against employers for committing unlawful acts like firing workers for union activity or collective action. So it goes -- it works both ways.

REHMGive us an example of a recent case where the NLRB enforced workplace rights.

RHINEHARTA recent example involves -- I know of a case involving a worker in Illinois. His name is Marcus Hedger. He's a pressman at a print shop in Illinois and a bipartisan panel of the National Labor Relations Board ruled that his employer had illegally fired him for being a union activist. And they ordered three years ago that he should get his job back. And, unfortunately, that case was taken to the court of appeals.

RHINEHARTThe NLRB ruled for him and said he should get his job back with back pay. The employer took the case to the court of appeals, and it's still sitting there. And unfortunately, the worker in this case, because of the financial hardship of not getting his job back, has lost his home. So that's just one example of where the NLRB did step forward to enforce workers' rights.

RHINEHARTAnother example involves a woman, Kathleen Von Eitzen, who, along with her co-workers at Panera Bread in Michigan, voted to form a union about 18 months ago. The NLRB enforced their right to have a union on the job. She's a baker, works the night shift, and she and her co-workers wanted a union to have higher wages and maybe get health insurance. And that's another example of the NLRB enforcing workers' rights.

REHMLynn Rhinehart on the AFL-CIO. Turning to you, James Sherk, it sounds as though the agency is doing a lot good things, but I gather you're not too happy with the NLRB.

SHERKWell, I would agree that the NLRB is an important agency, and you want it to be functional. I mean there's abuses by employers, as Lynn mentioned. There's also abuses by unions. Workers have a constitutional right not to fund their union's political activities. And there's a man in West Virginia about two years ago who didn't like the unions spending all this money on politicians he didn't support and said stop taking that out of my paycheck.

SHERKAnd the union, instead of doing that, illegally had his employer fire him. And the National Labor Relations Board came in and said, no, no, you've got a right -- you don't have to support your union's political activities. And they ordered him to get $10,000 in back pay. So it's important to have the agency there as an impartial umpire referring between the unions and the employers and standing up for the workers who don't support what the union is doing.

SHERKThe problem has been that in recent years under Obama the National Labor Relations Board has gone from interpreting the rules to rewriting the rules. So you have a situation where the pitcher is not being throwing the ball to the batter and the umpire is calling it a strike.

REHMGive me an example.

SHERKWell, a wonderful example of this would be the Boeing case which became so controversial, established precedent for over half a century that, yes, if you're a unionized employer, you can't shut down your plant and move to a new state. But nothing stops you from building an entirely new plant, hiring new workers as long as that's not hurting your unionized workers in that plant. And Boeing was in an enviable position of having a lot of demand for their products and they needed to build manufacturing plants.

SHERKAnd so they decided to build in South Carolina for a number of reasons. One of which was the fact that it was a low union density state but also for diversity so that if a hurricane or an earthquake hit Washington State, it wouldn't shut down all their lines. And the board came in, in complete violation of decades of precedent and said no, no, no, you can't do that. You've got to expand in Washington State and brought charges.

SHERKAnd that -- Boeing was floored by this. You know, a lot of employers were floored by this. The notion that you can't build a new plant where you think it's your best business interest when it does not harm your existing unionized employees at all, I mean, that's -- it's just so far out of bounds, and that's just one example.

REHMWhat about the Boeing situation, Lynn Rhinehart?

RHINEHARTWell, I disagree with James about that case. The Boeing case was not a remarkable case. It involved the application of settled law, law that have been settled for decades, namely that it's illegal for employers to discriminate against workers just because they've exercised their rights under the labor law. And in this case, there was evidence of a CEO of Boeing saying that they were moving to the work to South Carolina in retaliation for workers exercising their right to strike for better pay and benefits at the Puget Sound facilities.

RHINEHARTClear cut case of retaliation, it's been settled law for decades that that's a violation of the National Labor Relations Act. The only thing different in the Boeing case is it involved a gigantic multinational corporation with lots of money to run a P.R. campaign with its friends in Congress against the National Labor Relations Board so they blew this up into something way bigger than it should have been.

REHMProf. McCartin, this is nothing new. Is it -- hasn't the NLRB always had some controversy going on?

MCCARTINFrom the very beginning, Diane. And you can hear in the nature of this discussion that that would be naturally the case in a body that's trying to adjudicate between, you know, employers and unions. It will not -- its decisions will not always be liked by one side or the other. And that was true in the early days of the NLRB.

MCCARTINIn fact, the board was only a few years old before Congress started investigating it because of some complaints that it was biased in some of its decisions. So this has been a long running sort of dialogue in the history of the board, but it should be said that in this particular case, in the Boeing case, the case was actually settled. It was negotiated by both sides. And so the board did what it has usually done in these kinds of cases.

REHMJoseph McCartin, professor of history at Georgetown University and author of "Collision Course: Ronald Reagan, the Air Traffic Controllers and the Strike that Changed America." Short break. Right back.

REHMAnd welcome back. We've been talking about the history, the background why the National Labor Relations Board was created back in the '30s, what it's been doing ever since, which certainly brings us to the present filibuster fight, and finally, the compromise reached this week.

REHMThree people are here in the studio: Joseph McCartin is professor of history at Georgetown University, James Sherk is senior policy analyst in labor economics at the Heritage Foundation and Lynn Rhinehart is general counsel for the AFL-CIO. Professor McCartin, who were the original National Labor Relations nominees? Why did they get replaced in this filibuster fight?

MCCARTINDiane, they were Sharon Block and Richard Griffin. They were appointed as recess appointees by President Obama. That meant that the president appointed them in January 2012. There was controversy from the beginning about whether Congress was truly out of session when the president made these recess appointments. It was contended by people who oppose the appointments that the Congress wasn't formally out of session, that it was merely on a holiday break.

REHMAnd putting aside that question of the constitutionality, why did the president appoint them during that particular period? Had he feared that they wouldn't get confirmed anyhow?

MCCARTINWell, that is exactly -- that is exactly right. He resorted to the recess appointment because it became clear that the Senate would not act on his appointees and do order and give them up or down vote. So he resorted to a recess appointment that was opposed, and then a long controversy ensued, which was just settled.

REHMSo in January of 2013, the Appeals Court ruled that these recess appointments were unconstitutional. The administration appealed to the Supreme Court, which agreed to hear the case next term. But that's now moot, correct, Lynn Rhinehart?

RHINEHARTIt could be moot. It's not automatically moot. There are several courts of appeals, actually, who have now looked at and issues decisions on the constitutionality of these recess appointments. And so it's unclear whether or not that case is going to moot out of the Supreme Court.

REHMI see.

RHINEHARTIt might. It might. But it hasn't yet, and so we'll have to see how that unfolds. But to go back to something, if I could, that...

REHMSure.

RHINEHART...Professor McCartin said about the January 2012 recess appointments. The president made those appointments because had he not, the NLRB would've lost the quorum, and it wouldn't have been able to operate. It wouldn't have been able to enforce workers' rights under this very important law. So President Obama took this action in order to keep the lights on at the agency and make sure it could keep enforcing worker's rights, which, you know, is the same situation that we were facing right now looking at August.

REHMAnd so the question was, what were the objections to the two initial appointees? James Sherk.

SHERKWell, the AFL-CIO hasn't always been -- hasn't always objected to the lights going off at the National Labor Relations Board. When it was President Bush's nominees, you had the organizing director Stewart Acuff of the AFL-CIO in 2008 saying that the board should be closed for renovations for the entire year. When it was the prospective nominees that they didn't favor going on the board, they thought the board should cease to function.

SHERKAnd that was when you had Senate Democrats under Harry Reid keeping the Senate in session -- in pro forma session to prevent Bush from making a recess appointment. Republicans, basically, returned the favor under President Obama because they thought that -- the nominees were just going outside the balance of established labor policy that things like the Boeing decision, where it would be one thing if we would retaliate against existing workers.

SHERKBut they were hiring at the unionized plant in Washington State. The workers there were getting raises and bonuses. You know, the demand was so high. And they said, we want to build a new plant that's not going to harm any of our existing workers. It'll be new jobs in South Carolina. And the board objected because they weren't going to the union.

SHERKI mean, that's just so far outside of the balance of what's been the established labor law that Republicans were saying, look, you know, hang on. Let's get someone a bit more impartial. Don't be appointing lawyers directly from the unions on to the board. It's pretty clear they're not going to be an impartial umpire.

REHMSo now you have two new nominees, Nancy Schiffer and Kent Hirozawa. Are Republicans in favor of these two nominees?

SHERKI think the Republican turned a weak position and aren't in the position to block them. But again, if you look at them, Nancy Schiffer is Lynn's colleague at the AFL-CIO. She's the associate general counsel. I don't think anyone at the AFL-CIO or the Chamber of Commerce expects her to be an impartial voice.

SHERKRichard Griffin was the, you know, general counsel at the Operating Engineers. He was one of the disputed recess appointments, appointed directly there from his job is the top lawyer for that union. You've just got a situation where the board is not in any way acting as an umpire.

REHMHow do you see it, Lynn? Was this a good compromise?

RHINEHARTI think that agreement that was reached on Tuesday is good for American workers because it means that an agency that's vital to the rights and protections of the American workers is going to be able to continue to function. And so that's a good thing for American workers. If I could just say a word about the nominees, these are -- nobody has raised questions about the qualifications of President Obama's appointees to the National Labor Relations Board.

RHINEHARTThey are superbly qualified and experienced people with deep backgrounds in labor relations matters. Nancy Schiffer, who retired last year from the AFL-CIO, is a nationally-recognized expert in this area. Nobody has raised questions about their qualifications. And the idea that there's an objection being raised to a lawyer who happened to work at the AFL-CIO is really beside the point.

RHINEHARTThe point is, what are her qualifications to serve which are substantial? There were no objections, you know, I would just say when President Bush recess-appointed an NLRB member directly from the Chamber of Commerce. So this is not unprecedented lawyers would come from organizations.

REHMAll right. I want to go back to, in my own lifetime, the memory of the incident about which you wrote your book, Professor McCartin, that is Ronald Reagan and the air traffic controllers. Did that kind of set the stage for the sorts of arguments we're having now?

MCCARTINI think it did in some ways, Diane, in some indirect ways, I think, but I think in some important ways. As I said earlier, the board has often been the target of controversy, even from its earliest days. But I think you could say that, from the end of World War II through the 1970s, a kind of consensus existed on both sides. It was always the case that lawyers or people were appointed to the board who represented more on the business side or the labor side. That was understood. Still, the board was seen by both sides to be an effective agency.

REHMI want to stop you for a moment right there. Would you agree, James Sherk, with that assessment?

SHERKIn part. I think it went -- it passed in the 1970s. Let's say through the 1900s, early 2000s, the boards or -- you'd have, you know, umpires, you know, have different strikes zones. And, you know, when you got a Democratic president, the strike zone would favor the unions a bit more and under a Republican resident would favor the businesses a bit more. But the general parameters of the strike zone were pretty clear, and that's no longer the case.

MCCARTINAnd I would sort of disagree with that because I think the appointment by Ronald Reagan of Donald Dotson as chairman of the board in 1983 is seen by many people as a kind of a turning point.

REHMHow so?

MCCARTINDotson did not believe strongly in what the act was created to enforce, that is the idea of collective bargaining. Now at the very beginning, the National Labor Relations Board was created to enforce what was designated by the National Labor Relations Act to be a public good, that is, that it would be a good thing if workers bargain collectively. The thing was we need to set up rules around that to protect both workers and employers.

MCCARTINBut generally, through the 1950s and '60s and '70s, most of the people who were appointed to the board generally agreed that collective bargaining was good. They might have disagreed about how it should be done. They might have favored one side or the other. But I think that there's been, in the past 20 to 30 years, a growing detachment from conservatives from the idea that collective bargaining was a good thing.

REHMWhat happened with the air traffic controllers?

MCCARTINThe air traffic controllers were federal employees. They weren't directly subject to this board or this law. But when Ronald Reagan did fire them, it had a big impact, I think, on the tone in the tenure of American labor relations in the '80s. And they contributed to a growing bitterness, I think, and divisiveness on each side. And I think that, in some ways, has led to the recent things we've seen around the board.

REHMJames Sherk, do you think that Republicans really would like to see different people on the NLRB, or would they like to see the NLRB go away?

SHERKI think what they would like to see is the NLRB functioning, but in an impartial manner where it's not leaning the -- its hand heavily on the scales to increase union membership, which is what the current agency has been doing. There's important rights it protects: the right-to-work laws, the right of a union member in now 24 states across the country, including my home state of Michigan, not to pay union dues and still be able to keep your job, so the union can't get you fired.

SHERKIf the board's not in existence, right-to-work laws aren't getting enforced, and so it's important to have the agency there. But the union movement just made it very clear that they intend to use the National Labor Relations Board and their appointees in order to increase union membership.

SHERKYou had Stewart Acuff, again the organizing director of the AFL-CIO, saying that they're going to work -- and I'm quoting here: "We will work with President Obama and Vice President Biden and their appointees to the National Labor Relations Board to change the rules governing forming a union through administrative action."

SHERKThey wanted to get rid of the secret ballot with the Employee Free Choice Act with a Democratic supermajority Congress. That was a bridge too far, and now they're trying to accomplish the same ends with the National Labor Relations Board, and that's what's so controversial.

REHMLynn Rhinehart, I'm sure you'd like to comment.

RHINEHARTI'd like to go back to where Professor McCartin started, which is the National Labor Relations Act and why it was passed and what it's supposed to be about. That law says workers have the right to join together and engage in collective bargaining, and Congress said that is a good thing. There's -- that is the law that these appointees are charged with enforcing and protecting. So...

REHMBut he, James Sherk, is saying that the NLRB is made up too heavily of pro-labor individuals and is not a balanced board.

RHINEHARTWell, I would disagree with that. It has always been the case that the president in power has the majority on the National Labor Relations Board. So when it's a Republican president, the board has a Republican majority. When it's a Democratic president, the board has a Democratic majority.

REHMAnd has that been true right along, Prof. McCartin?

MCCARTINThat has been the...

REHMSo you, James Sherk, are looking at what President Obama has done specifically.

SHERKExactly. If you take a look at some of these decisions coming out, the purpose of the board's decisions are to increase union membership, and they've been fairly express about this. Now, the National Labor Relations Act, as originally passed, said, we want to promote collective bargaining.

SHERKBut there were tremendous union abuses during the Second World War, going on strike in the coal and the steel industry, and the Taft-Hartley Act amended it to say, we protect employee choice. If you want to form a union, you can do that. If you don't want to form a union, you can't be pressured and threatened into doing that.

REHMAnd you're listening to "The Diane Rehm Show." Lynn Rhinehart, you wanted to add to that.

RHINEHARTLet's look at some of the actions that this National Labor Relations Board has taken over the last couple of years, and your listeners can decide whether or not these are these outrageous pro-union actions that James would suggest. The National Labor Relations Board adopted a rule to require businesses to put a poster up in their workplaces informing workers that they have rights under this law.

RHINEHARTThe National Labor Relations Act is the only labor and employment statute that doesn't have a poster up in the workplace telling workers about their rights. And for the law to work, workers have to know they have rights and that those rights are protected. That's an example of the kind of thing that this labor board is trying to accomplish.

REHMJames Sherk has said that President Obama is urging growth in union membership. Is that so?

RHINEHARTPresident Obama has been a long-standing supporter of workers' rights to organize and collectively bargain because he's expressed his view that that strengthens our economy and it's good for workers and business. So that's been his orientation as a senator and as president all along, and we're very grateful for that. He's appointed to the National Labor Relations Board people who are superbly qualified and believe in the mission of this law, and I think there's no evidence that his appointees have done anything other than fairly enforce that law.

REHMProfessor McCartin.

MCCARTINAnd I would say, Diane, too, that President Obama clearly favors collective bargaining. There's no doubt about that. But that used to be a bipartisan thing in this country. Dwight D. Eisenhower favored collective bargaining. Richard Nixon never attacked union rights in the way that current-day leaders of the Republican Congress are doing.

MCCARTINThe real change that has happened over the past 30 years or so is in the orientation of the Republican Party toward this law because, previously, there didn't used to be this level of rancor about it. I would say that the Democrat side has changed all that much over the years. In fact, labor people often are quite critical of President Obama. Why doesn't he do more for them?

REHMAll right. And before we go to a break and before we open the phones, what's going to happen to the NLRB cases that were decided during the recess-appointed board members' terms, professor?

MCCARTINNow, you know, as Lynn Rhinehart alluded to a minute ago, there's still some debate about how that's going to be set, although it's possible, I believe, for the board members, once they are confirmed, to approve those cases and to lend the authority of an approved board to those previous decisions. But there's probably going to be some litigation around that, I would suspect.

REHMAll right. Let's take a call from O'Fallon, Mo. Hi there, Gerry. You're on the air.

GERRYGood morning. First of all, I do kind of detect a little bit of bias on Mr. Sherk's part in using the terms illegal for strikes, and also in the Boeing situation, it's not illegal to open a new plant. The government can't tell you where to do it. But if you have an executive who specifically states that this was done to get around the union or break the union, yeah, you're not dealing with some very intelligent people.

GERRYMy main question is I have never understood the bias against unions that conservatives seem to have. If we look at the history of the United States, our most prosperous times correspond with the highest rates of unionization. After World War II, we created a lot of jobs for people that paid well. Any economist who's not politically affiliated will tell you the fastest way to get money into the economy is to give it to people who are going to spend it -- i.e., raise wages.

REHMAll right. Gerry, we've got to take a short break here. When we come back, if you'll hold on, we'll get some discussion on the points you've made, and I'm sure all of our guests will want to weigh in. Join us by phone, email, Facebook or Twitter. Stay with us.

REHMAnd welcome back as we talk about the National Labor Relations Board. Just before the break, we had a call from Jerry in O'Fallon, Mo., who, James Sherk, want to talk with you about the economy and whether higher wages and collective bargaining aren't good for the economy.

SHERKWell, first off, workers in the private sector do have a right to form a union. And I believe management gets the union they deserve. A company that treats its workers with respect is going to find that they don't feel the need to purchase protection from management. And a company that treats people like objects is going to get unionized, and it should get unionized. But in terms of the broader economy, most economists who study this -- I'm a labor economist, that's my background not the law side.

SHERKAnd in economic terms, unions are a cartel. What they're try and do is they restrict the supply of labor in an industry in order to raise up its price. Just as OPEC attempts to restrict the supply of oil in the world to drive up the price of oil through its members, unions try and control the supply of labor. Think of the Big Three in Detroit.

SHERKBecause they'd organized Ford, Chrysler and GM, they could command to pay up to $75 in hourly wages and benefits. And so if you're in the inside of a cartel, it's a great thing. But it comes at the cost of -- in Detroit, higher cost of automobiles and fewer jobs in the auto industry. And so, yeah, if you're -- if the company is being a jerk, yes, they should get unionized. But it's not going to lead the higher prosperity for the entire economy.

REHMLynn Rhinehart.

RHINEHARTWorkers who want to have a union on the job should have a union on the job regardless of whether their employer is a jerk or their employer is nice or benevolent. The point of unions -- unions are workers. And it's a way for workers to come together and address whatever issues are important to them at their own workplace.

RHINEHARTAnd through that action, they've been able to come together, try to raise wages, try to get health benefits, and it's helped build the middle class. So, in our view, it's not just for situations where workers are mistreated by management, while -- though certainly that's a situation where a union would be beneficial. But it's every workplace where workers want to come together and make improvements in their lives.

REHMAll right. To John here in Washington, D.C. You're on the air.

JOHNThank you, Diane. I worked as a field examiner for the National Labor Relations Board for more than 21 years. I've been retired for several years now. But the gentleman from the Heritage Foundation knows well that there's are five people who are appointed to the board. And that typically, two of them are Democrats, two of them are Republicans and the fifth would be whichever party is represented in the presidency. The Republican appointees are almost always management attorneys.

JOHNSo for him to suggest that the board -- the composition of the board is somehow biased by the fact that someone who represented labor in their life before the NLRB has been appointed to the board. It's disingenuous at best. As far as the Boeing case, which I was not involved in, look, the regional director in Seattle made the decision to issue complaints. And as the woman pointed out, when that decision was made, Boeing was very anxious to settle.

JOHNAnd the reason they were anxious to settle, I suggest to you, would something to do with the fact that management out in Seattle was telling any newspaper reporter in sight exactly why they were putting this plant in South Carolina. And that was to make sure that the union out there got the message. Finally, Diane, the agenda that these people have, let's be clear about this, it effectively nullify the National Labor Relations Act and the board that enforces it.

REHMAll right. Thanks for your call. What about your comments regarding the make-up of the board itself? James.

SHERKOf course. It's always been, you know, three members of the president's party, two members of the opposing party. But the difference has been was traditionally, you wouldn't appoint someone directly from a union or directly from management side. Traditionally, there'd be a two-year wedding period or so.

REHMIs that true? Joseph McCartin.

MCCARTINNo. It actually goes back pretty far. People from the sides who are either management side lawyers or union side lawyers have been on the board. That's a pretty -- that's not a new development.

SHERKCertainly that they would have you work that way in the past. But you wouldn't traditionally appoint them directly from the union. Craig Becker came directly from the SEIU. Richard Griffin came directly from the Operating Engineers. They used to be a bit of an appearance of impartiality with having spent a few years doing something other than practicing on the management side.

REHMAnd what about those from business?

SHERKAnd traditionally, yeah -- there's something on labor law but traditionally not the union law side of things. And that's where -- he's right that President Bush wanted someone directly from the Chamber of Commerce and that it escalated with many of Obama's nominees coming directly from the union movement.

REHMLynn Rhinehart.

RHINEHARTI'm sorry but James just doesn't have his facts right. For decades, you know, , there have been appointees to the National Labor Relations Board directly out of corporate law firms, of lawyers who represent management and labor relations matters representing management against unions. And they bring that experience to the board. There are two such people who are going to be part of the package that the Senate is going to confirm, you know, sometime before they go for the August recess.

RHINEHARTThey represent management against unions and labor relations matters, and they bring that perspective to the board. But nobody's suggested that they shouldn't be there because they're not qualified, and the same should go for these extremely experienced and qualified people who have represented workers and unions on the worker and union side of the equation.

REHMJames Sherk, would you like to see the NLRB nullified?

SHERKNo. I think I -- in government -- I don't we should have unions in government. I think that government has a monopoly on the essential services. And you can't have the police or the schools or in -- in California recently...

REHMSo you don't believe government employees...

SHERKGovernments should not.

REHM...should be protected by the NLRB.

SHERKBut they're not. The National Labor Relations Board was signed by President Roosevelt. It only cover the private sector. President Roosevelt himself said that, you know, the government shouldn't have collective bargaining because of its unique role in society.

REHMWhat about government unions, Lynn Rhinehart?

RHINEHARTWe absolutely believe that government employees should have the right to organize and have unions. And millions do. If I -- can I go back to a point that the caller raised about the motivation of some to actually nullify the National Labor Relations Act by shutting down the National Labor Relations Board?

REHMSure.

RHINEHARTMy colleague from the Heritage Foundation seems to think that that wasn't a motivation of some of the Republicans who were poised to do just that by blocking President Obama's nominees to the NLRB. I think it's not -- I think there are people out there and Republicans out there who did want to see the NLRB shut down because that would nullify the NLRA.

RHINEHARTWhen you have people like Sen. Lindsey Graham saying the NLRB as inoperable could be considered progress, I think that's a pretty clear indication of where he's at. So the fact they were willing to take it right up to the brink this week and risk shutting down this agency in August and denying millions of workers the protection of a law, I think, reveal something about where they stand on this law and the rights of workers under this law.

REHMAll right. Here's an email from Philip, and I'll put his question to you, Joseph McCartin, "Wal-Mart is constantly criticized for treating employees badly. If workers have a right to unionize, how is it that companies like Wal-Mart always manage to crush those unions before they're formed?" Do those workers have any practical right to unionize or just a theoretical one?

MCCARTINWell, I think the Wal-Mart situation really does make clear that's a pretty theoretical right, consider the fact that Wal-Mart is the largest private employer in the United States and consider the fact that in cases where Walmart has encountered unions. There have been a couple of Wal-Marts where meat cutters, for example, were members of a union.

MCCARTINAnd Wal-Mart decided to simply shut down the store and open a store somewhere else rather than deal with the union. With a company that big, to effectively unionize it, you need massive workers to be able to join the union. It's very, very hard to do. And the way the law currently operates, the penalties for management violating workers' rights to organize are actually pretty minimal.

MCCARTINIf you are an employer and you fire a worker for having tried to exercise their right to join a union and you were found after the investigation by the NLRB to have violated that worker's right, all you can be required to do is bring that worker back and pay them back wages for the time that they did not work for you minus whatever they might have earned while they worked somewhere else in the intervening time. That's not much of the penalty, and many employers are happy to be slapped on the hand rather than really truly recognize workers' right to organize.

REHMSo for Wal-Mart workers, it's a choice between organizing or having their jobs.

MCCARTINWell, I think probably many of them would look at it that way because there is, no doubt about it, a sense of fear in the American workplace.

REHMThat they're going to lose their jobs if they attempt to organize.

MCCARTINYeah, sure. Absolutely.

REHMYou're shaking your head, James.

SHERKNo. I disagree with that. If you look at the numbers, it's incredibly rare. The ALF-CIO's own researcher, Kate Bronfenbrenner, you know, famous for, you know, saying that you've got this intimidation campaigns. But then you should take a look at National Labor Relations Board charges filed because if ever an employer does something like that, the unions, at the drop of a hat, file charges because, if nothing else, it's bad press for the employer.

REHMSo where's the...

SHERKLet me just finish. She found that in only 6 percent of organizing drives was there actually a termination. And so you have all this argument that the employers are coming out and doing all these awful things, but the numbers just don't back it up.

REHMWhat about the NLRB, the AFL-CIO in regard to Wal-Mart, Lynn Rhinehart?

RHINEHARTJoe is right. Wal-Mart is a huge employer. It is a very anti-union employer. And it has been really vicious in trying to prevent its workers from organizing. There are large groups of workers who still have come together showing great courage and tried to advocate for improvements on the job at Wal-Mart.

RHINEHARTAnd you've seen from some of the public pressure campaigns on Wal-Mart that they've responded and done some things like, at one point, they were extending health insurance to part-time employees. I think they cancelled that then when -- so we might need to bring the public pressure back again, but it is tough. And this is a law that protects workers' rights to organize, but it is weak. It needs to be strengthened to better protect workers' rights to organize.

RHINEHARTBut, unfortunately, it is true that, too often, employers, when faced with workers exercising their right to organize, retaliate by firing workers, demoting workers. Last year alone, the NLRB got $46 million in back pay for workers who were wrongfully terminated or discriminated against, more than 1,200 workers in one year alone. So I think that proved positive that this problem exists.

REHMJames.

SHERKThe vast majority of those back pay awards are in the context of collective bargaining disputes where the employers, you know, change compensation and the union is saying, oh, you have to wait, we had a contract. That's what the vast majority of those back pay awards are coming from. It's not the terminations during the campaign. But, look, yeah, Wal-Mart -- most companies want to stand on union. They make the most persuasive case they can to their workers. And they give workers the other side of the story.

SHERKThe unions come in and say, look, we'll get you higher pay. We'll get you better benefits. And it's the job of management to come in and say, look, here's what the unions done in other companies: They're selling you your motherhood and apple pie, but they can't deliver. And workers should hear both sides. They should make an informed choice.

REHMJames Sherk, he's senior policy analyst in labor economics at the Heritage Foundation. And you're listening to "The Diane Rehm Show." Let's go to Cleveland, Ohio. Hi there, Henry.

HENRYHello. Good morning.

REHMHi there. Go right ahead, please.

HENRYI've been a union member for more than 30 years. And while you do see the employers work against for having unions and you see unions retaliate against members who are working against the union leadership, they both want to protect their power and their revenue streams. And what you really need is an impartial referee.

HENRYThe NLRB has become so politicize, as it yo-yos from party to party that in the interpretation of the details of the laws, it's become arbitrary and nonsensical. And you couldn't look at the law or even the Supreme Court rulings and figure out what's your rights and responsibilities are as an individual member of the union or as part of the workforce.

REHMProfessor McCartin.

MCCARTINWell, I think that it is true that the board has become more politicize in recent years. And I would say that that is because this consensus that once existed around collective bargaining being a good thing has pretty much eroded in the country and eroded along partisan lines.

REHMPeter in New York writes, "I seem to remember reading stories about the labor strikes during the '30s and the companies affected regularly used Pinkerton agents to attack the strikers frequently and with deadly force. I personally have never been in a union, but almost all the benefits I have when I was working are a direct result of union activity. Are we seeing an erosion of workers' rights and a slow return to the conditions that cause those strikes to occur?" Prof. McCartin.

MCCARTINWell, we don't have today the kind of labor violence that the writer has talked about, Diane, where -- in the 1930s, absolutely, there were vicious brutality in the effort to break strikes. But today, the situation is different. James Sherk talked a moment ago about employers making the case against the union. The employer today can simply call a meeting on company time in the workplace to make that case. And the union doesn't have a similar footing to be on.

MCCARTINSo the employer does have many advantages. They don't need to use violence to defeat a union drive. They don't even need to fire a worker. Just a mere intonation that, you know, what, you're not going to do very well in this company if you advocate the union position. That's enough to dissuade many workers.

REHMLynn.

RHINEHARTWe've been talking a lot about confrontation and, you know, adversarial relationships and problems, and I would just like to point that there are thousands of examples of positive collective bargaining relationships across America where unions and workers and companies have sat down and worked together to solve problems, create job training opportunities, bring jobs back to America.

RHINEHARTAnd so I just don't want us to lose sight of the very positive labor management relations that do exist out there and are, frankly, you know, protected by this framework created by the National Labor Relations Act.

MCCARTINAnd that was the vision behind the act, that it would promote those kind of amicable relations through negotiations.

REHMBut right now, it does not seem to be working. James Sherk, you get the last word.

SHERKWell, I'd agree. The structure of collective bargaining is very much an adversarial structure, that it's seen that, you know, whatever your labor gets comes at the expense of the company and vice versa. And I think most workers today want something. They think around the same side as their employer. If their company does well, they do well. And they don't want this adversarial relationship. And I think this 1930s-era model really isn't a fit for the modern economy and should be reformed.

REHMAnd one last email from Sherry, who says, "My daughter recently got a job at Sam's Club, part of Wal-Mart. She was specifically told not to join a union or she would be let go." And that's our discussion this morning. Lynn Rhinehart at the AFL-CIO, Joseph McCartin of Georgetown University, James Sherk of the Heritage Foundation, thank you all so much. Thanks for listening, all. I'm Diane Rehm.