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National Labor Relations Board

May 17, 2013
Why We Need the National Labor Relations Board
Guest Post
by Senator Tom Harkin (D-Iowa). Sen. Harkin is the Chairman of the Health, Education, Labor, and Pensions Committee.

This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee, which I chair, held a hearing on the full slate of five nominees to the National Labor Relations Board (NLRB): Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III, and Philip Andrew Miscimarra. These are vitally important nominations because the enforcement of our labor laws is essential to the growth of a strong middle class and to the smooth functioning of businesses large and small across the country. Without Congressional action, the NLRB will go dark in August -- which could have a truly troubling impact on our economy.

Workers and employers alike rely on the fact that the Board will enforce our labor laws, and enforce contracts between labor and management. For the thousands of American workers fired every year for trying to organize a union in their workplace, an NLRB out of commission means that those workers would have to wait years before they could get their job back or any back pay for lost wages. From the business perspective, the NLRB also ensures that unions do not step outside the law in their interactions with workers or employers. Perhaps that is why a Senior Counsel to the National Federal of Independent Businesses (NFIB) said that “to have the Board totally shut down would be a travesty.”

Despite this agreement on the importance of the Board’s operations, in recent years, Congressional Republicans have waged unprecedented attacks on the NLRB. While it appears that their real goal might be to repeal the National Labor Relations Act altogether, because they know that an attempt to repeal the law directly would surely fail, they have worked instead to dismantle the Board by attempting to hold up nominees or strip its funding. In the last Congress, House Republicans launched a series of efforts to shutter the NLRB, including voting to defund the Board entirely, and proposing a budget to force the Board to furlough all of its employees for most of 2011. Republicans have also proposed bills to abolish the NLRB and bills to limit its ability to enforce decisions and promulgate regulations.

Of course, these efforts to undermine the Board are all part of a larger Republican assault on the unions and on collective bargaining in states like Ohio, Wisconsin, and Michigan. These attacks don’t just hurt unions -- they undermine the very existence of the American middle class.

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Other courts, Labor law, Economic, Workplace and Environment Regulation, Guest Post, Harry I. Johnson III, HELP Committee, Mark Gaston Pearce, National Labor Relations Act, National Labor Relations Board, NLRB, obstructionism, Philip Andrew Miscimarra, Richard F. Griffin Jr., Sen. Tom Harkin, Sharon Block
May 15, 2013
Enforce the Law: Kafkaesque Reflections on the NLRB
Guest Post
by Anne Marie Lofaso, Associate Dean for Faculty Research & Development, Professor of Law, West Virginia University College of Law

The Senate Health, Education, Labor and Pensions (HELP) Committee will hold hearings tomorrow on President Obama’s five nominees to the National Labor Relations Board (NLRB or Board). So why, when there are so many vitally important issues facing our country – the enormous budget deficit and sequester being only two of those issues – is the Senate spending its time on the confirmation of five public servants?

Since the 1947 Taft-Hartley amendments, the Board has been comprised of five members, appointed by the president with the advice and consent of the Senate. For years, Senate Democrats and Republicans held to a gentlemen’s agreement that the president would select three Board members from the majority party and two Board members from the minority party. Over the years, these nominations became increasingly more political, with administrative decisions predictably oscillating between pro-business and pro-labor-enforcement results, depending on which party held control of the Executive Branch.

In an administrative agency that tends to make law by adjudication rather than rulemaking, this back-and-forth between reasonable interpretations of the National Labor Relations Act (NLRA or Act) is both lawful and par for the course. Those in power are privileged to re-interpret the statute that they are charged by Congress with administering so long as the following conditions are met: (1) a case comes along that raises the issue; (2) their statutory interpretation is reasonable and permissible/constitutional; and (3) they give reasons for changing their mind.

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Labor law, Separation of powers, Economic, Workplace and Environment Regulation, Anne Marie Lofaso, Education, Guest Post, Health, Labor & Pensions Committee, National Labor Relations Board, New Process Steel v. NLRB, Noel Canning v. NLRB, nominations, President Obama, recess appointments, Sen. Lamar Alexander
May 14, 2013
Sen. Lamar Alexander a Problem-Solver Turned Partisan Warrior
Guest Post
by Norman J. Ornstein, Resident Scholar, American Enterprise Institute (AEI). Ornstein and Thomas E. Mann are authors of It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism.

Few members of the Senate have professed more concern about dysfunction in the nomination and confirmation process than Sen. Lamar Alexander (R-Tenn.). Alexander is a wonk who cares about policy-making and problem solving. And, most importantly, it gets personal with Lamar -- he had his own unpleasant experience with the Senate's long-broken confirmation process when he came up as a nominee for Secretary of Education. Commendably, Lamar worked in a bipartisan fashion last year, with Sens. Susan Collins (R-Maine), Joe Lieberman (I-Conn.), Chuck Schumer (D-N.Y.) and others to streamline the process by removing a number of lower level executive nominees from the requirement for Senate confirmation.

What has happened to that Lamar Alexander? His persona seems to have been kidnapped and replaced by partisan warrior Lamar Alexander, participating in a series of abuses of the confirmation process that are both denying a president elected by a wide margin from selecting his own people to serve and attempting to block agencies from being able to function by filibustering or applying blanket holds to clearly qualified nominees -- what Tom Mann and I have called the new nullification.

We have seen the latter both with the NLRB, ever since Obama became president in 2009, and the Center for Medicare and Medicaid Services, the agency charged with implementing Obamacare, since the Affordable Care Act was enacted. Faced with the prospect of a National Labor Relations Board actually functioning and making decisions that reflected the majority, Republicans in the Senate filibustered to block any nominees, no matter how qualified, to prevent the agency from having a quorum. Frustrated after a long period of such behavior, Obama used recess appointments to get the agency working-- and then had to deal with a sweeping appeals court decision, written by the highly partisan judge David Sentelle, the same judge who fired competent and fair-minded Whitewater Independent Counsel Robert Fiske and replaced him with Kenneth Starr, outlawing almost all recess appointments. The decision is under appeal, but Alexander is calling for the removal of Obama-named commissioners, and also calling for them to be blocked from re-nomination in the future, before the court case has been finally litigated.

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Executive power, Other courts, Labor law, Separation of powers, Economic, Workplace and Environment Regulation, Judicial Nominations, Guest Post, National Labor Relations Board, NLRB, Norman Ornstein, Sen. Lamar Alexander
May 13, 2013
Senate Must Confirm NLRB Nominees Now to Protect Workers, Economy
Guest Post
by Johnda Bentley, Assistant General Counsel, Service Employees International Union (SEIU)

The National Labor Relations Board (NLRB) is the agency that protects the rights of private sector employees to join together to improve their wages and working conditions. Until the Senate confirms President Obama’s nominees to the NLRB, employees’ rights and our economy are at risk.

The NLRB stopped functioning properly in late January when the D.C. Circuit invalidated the recess appointments of two of the three current Board members in Noel Canning. With only one valid member appointed, the court concluded, the Board had lost quorum. Since this ruling, employers have challenged the agency’s authority at every level.

The validity of the recess appointments is unclear. The issue is pending before several other circuit courts, and Noel Canning was appealed to the Supreme Court. However, assuming the Supreme Court grants review, a decision is unlikely before next year.

Following Noel Canning, President Obama re-nominated the two recess appointees, both Democrats. And in April, the president made three more nominations, includingtwo Republicans and the current Chairman, a Democrat. The Chairman’s current term will expire on August 27, 2013, unmistakably leaving the Board without a quorum if there are no appointments before that time. If Senate confirms all nominees, there will be a full, five-member Board.

In the meantime, the Board continues to issue decisions with the recess appointees, but unfair labor practices largely remain unremedied. This is because orders of the NLRB must be enforced by circuit courts, and all parties have the option to appeal to the D.C. Circuit.

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Other courts, Labor law, Economic, Workplace and Environment Regulation, Guest Post, National Labor Relations Act, National Labor Relations Board, NLRA, NLRB, Noel Canning v. NLRB, U.S. Court of Appeals for the D.C. Circuit
May 9, 2013
Senate Obstructionists’ Ongoing War on National Labor Agency
Guest Post
by J. Chris Sanders, Counsel, Jobs With Justice

President Obama’s nominees to the National Labor Relations Board are set to appear before a Senate hearing next week. What's at stake? To recap, the president nominated two labor-side members of the Board, who weren't confirmed due to the dysfunction holding up all kinds of administration nominees. Obama then appointed them in a recess in order to get a quorum of three Board members, who then rendered hundreds of decisions. The regal U.S. Court of Appeals for the D.C. Circuit recently ruled that the recess appointments were improper, and those hundreds of decisions were made without a quorum. So the decisions are in limbo, and the power to decide cases in the future at all is at risk. The administration has appealed the D.C. Circuit’s opinion to the U.S. Supreme Court. In the meantime, the president has nominated two management-side Republicans (a traditional, balanced approach) and re-nominated the chair to complete the five-person Board. They're headed to headhunter hearings before the Senate next week.

The dust-up has big consequences for working people, labor law, presidential appointment power, and the rule of law in the workplace.

Pity the poor NLRB, enforcer of the venerable National Labor Relations Act. Over the last couple of years, this little federal agency has had its turn in the barrel with the "Obama-is-a-socialist" faction. Just one, prominent example: In 2011, a routine investigation found that Boeing's decision to build a new aircraft-production facility in South Carolina instead of at its Seattle base was partly to punish Seattle union workers for previous strikes. (The right to strike- to withhold one's labor to oppose mistreatment- is, at least on paper, federally protected from retaliation.) The evidence was strong, so the NLRB moved forward, and issued an unfair labor practice complaint.

The mouth-breathers went ballistic. They blew it out of proportion into an attack on the New South and the marketplace. Boeing became a cause célèbre in Republican politics. A congressional committee subpoenaed the NLRB's General Counsel to a hearing in South Carolina. Hundreds of bills have been filed to destroy, de-fang, and de-fund the agency. Its budget is and was under attack, even before the sequester.

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Tags:
Executive power, Labor law, Economic, Workplace and Environment Regulation, AFL-CIO, American Rights at Work, Boeing, Guest Post, J. Chris Sanders, Jobs With Justice, National Labor Relations Act, National Labor Relations Board, Senate obstructionism, U.S. Court of Appeals for the District of Columbia Circuit