Faced with widespread union busting and a feckless NLRB, a more aggressive labor movement is brewing.

The National Labor Relations Board has a long history of dysfunction, but its job just got a lot harder. In January, a federal appeals court ruled that Obama had illegally appointed three of the board’s members while the Senate was in recess early last year. Now, recess appointments are a touchy subject in Washington, but Obama had good reason. Republicans in the Senate had threatened to block any and all NLRB appointments, leaving the president with few options. (Oddly, there’s no law against deliberately obstructing a vital government agency.)

If the decision stands, the board is toast. With only one remaining member, the NLRB lacks a quorum, and legally loses all decision-making power. The bedrock of labor law enforcement would grind to a halt. What’s more, all decisions since the January 4 appointments last year could be nullified—that’s hundreds of rulings on everything from workers using social media, to who handles union dues on a day-to-day basis.

This is bad news for organized labor, but not as bad as you might think. While few doubt the board’s importance in protecting things the right to organize, the NLRB also has a long history of institutionalizing the bureaucracy and hierarchy that have plagued American labor for decades. The board was born during an era of historic labor militancy, and reforms that established basic workplace protections also went hand in hand with bans on more militant actions like sit-downs, sympathy strikes, and wildcats. In their place, the board set up channels like union elections and regulated negotiations. The new system was more predictable for everyone, but also more top-down, less democratic, and arguably much less effective for labor.

So, alienated by the rigidity and hierarchy of the NLRB system, many workers and organizers have begun learning to live without it, preferring to engage in struggles on their own terms. Indeed, with or without a functioning labor board, many of the movement’s brightest flashpoints are operating well outside the system.

One of the clearest of those flashpoints was certainly last year’s unprecedented organizing effort at Walmart, a grassroots campaign that united unions, labor groups, and activists across the country. The push began in September, when workers at a Walmart-controlled warehouse in Mira Loma, California, walked off the job and began a “Walmarch” to Los Angeles to demand safer working conditions. Earning well below a living wage, the Mira Loma workers had suffered 120-degree heat, inadequate ventilation, and broken equipment—conditions that lead more than 80 percent to experience on-the-job injuries. They were also mostly part-time workers, and often relied on a “buddy system” during slower workweeks.

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