NLRB

  • July 19, 2013
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    When faced with drastic changes to its own rules, the Senate apparently can reach a compromise.  A Democratic threat to use the so-called nuclear option to change the filibuster rules caused Republicans to agree to cease blocking a vote on President Obama’s nominees to various agencies, including the National Labor Relations Board (NLRB) and the Department of Labor.

    This compromise, reached July 16, will enable an up or down vote on the package of five nominees for the NLRB.  As a part of the agreement, the president consented not to re-nominate the two current recess appointees to the Board.  Instead, the president has nominated two experienced labor attorneys, Nancy Schiffer, who recently retired from her position as Associate General Counsel for the AFL-CIO, and Kent Hirozawa, who is on the staff of current Board Chair Mark Gaston Pearce. President Obama previously re-nominated Pearce, whose term expires in August, and nominated two attorneys with long careers representing management, Philip A. Miscimarra and Harry I. Johnson. Thus the package contains the traditional three members from the president’s party and two from the opposing party.

    Hearings are scheduled on the nominations and the agreement raises hope that the Board members will be confirmed before Board Chair Pearce’s term expires in late August, when the agency would once again be unable to act because of the absence of quorum. The four blocked nominees to other agencies have already been confirmed. The actions of Republican senators on the NLRB nominees were part of a pattern of obstructing the president’s nominees. Blocking the NLRB nominees was particularly egregious, however, because the NLRB members, unlike the EPA Administrator and Labor Secretary, serve a judicial function and cannot act without a quorum.

  • June 24, 2013

    by Jeremy Leaming

    Republican obstructionists in the Senate have strived to hobble or make wholly inoperative the National Labor Relations Board, which is charged with protecting the rights of workers, including the right to form unions and engage in collective bargaining. That effort got a boost by the rightward leaning U.S. Court of Appeals for the District of Columbia Circuit, which ruled earlier this year that President Obama’s recess appointments to the five-member board were unconstitutional.

    Today, the U.S. Supreme Court, an increasingly pro-business Court itself, decided to wade into the issue and determine whether the D.C. Circuit got it right in the case, National Labor Relations Board v. Noel Canning. “The specific issue is the scope of the Constitution’s grant of presidential power to put an official temporarily into office without Senate approval – a power that arises when the Senate is not on hand to review that appointment,” writes SCOTUSblog’s Lyle Denniston. “Answering that question could require the Court to define when the Senate, in a legal sense, goes into recess.”

    The D.C. Circuit’s opinion in January found that the president ran afoul of Article II, Section 2, which grants the executive the “power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” For more than a hundred years presidents have made recess appointments to fill executive branch and judicial vacancies that Congress has refused to provide advice and consent on. But the D.C. Circuit panel, made up of Republican appointees, narrowly defined when Congress was in recess, thereby invalidating Obama's recess appointments.

    The president, however, argued that the Senate was bent on blocking his nominations to the NLRB and that it was long past time to make the agency operational. Not surprisingly a group of Republicans lodged a brief with the high court calling on it to let the D.C. Circuit opinion stand.

    The Constitutional Accountability Center, however, lodged a brief urging the justices to take the case and reverse. The CAC’s brief says the D.C. Circuit opinion greatly weakened the recess appointments power by claiming it can only be used “during recesses that occur between enumerated sessions of Congress, and not during any intra-session break.”

    Denniston notes that while the justices may focus on the constitutional questions raised in the case, “the outcome has real potential for giving either the Senate of the White House real tactical advantages in the ongoing confirmation wars. It could give a resistant Senate a chance to nearly take away the president’s recess appointment authority, or it could give the White House a way to get around filibuster-driven obstruction of nominees.”

    As Sen. Elizabeth Warren (D-Mass.) noted at the 2013 ACS National Convention, the Supreme Court has grown increasingly friendly to big business concerns, with the Chamber of Commerce continuing to rack up wins before the high court. The Chamber and other business interests will surely be pushing for a Supreme Court opinion that would narrow the scope of the president’s recess appointments power, especially since the case involves a Board it views as a hurdle to their interests.

  • May 29, 2013

    by Jeremy Leaming

    The Senate’s obstructionists, meaning the Republican caucus, are urging the U.S. Supreme Court to review and uphold a federal appeals court decision that greatly narrowed or rewrote the president’s power to make recess appointments.

    And that’s not terribly surprising. The case involves vacant seats on the National Labor Relations Board, an agency that Senate Republicans have fought to keep business friendly or inoperative. Republicans have convinced themselves that the NLRB, which was created to protect both rights of workers and employers, is all about making life tough on corporate America. The Senate Republicans are of course deluded, but consistent in their support of the powerful. (The Supreme Court could decide this summer to take the case for review.)

    In January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB held that President Obama ran afoul the Constitution when he appointed Sharon Block and Richard Griffin to vacant seats on the five-member agency during a 20-day recess of Congress. Obama made the appointments after Republicans continued to stall on considering the nominations. Article II, Section 2 of the Constitution grants the president authority to make recess appointments. The D.C. Circuit’s opinion was crafted by three-Republican appointees and was widely panned by legal scholars, noting that presidents have for a century used recess appointments to fill executive and judicial vacancies to help keep the government functioning. Also, as Ohio State University law school professor Peter Shane has pointed out, three other federal courts of appeals have ruled the other way, upholding the presidents’ recess appointment powers. (Another federal appeals court, however, has followed the wobbly D.C. Circuit’s opinion, so there is a split among the circuits, which heightens the chance the U.S. Supreme Court will jump into the mix and take Canning for review.)

    In a brief urging the high court to take Canning, 45 Republican senators argued that the D.C. Circuit’s opinion should be upheld. Such appointments, the brief states “have become a means to sidestep Senate confirmation.” They added, “In any case, the President himself has made clear that he will resort to recess appointments, and indeed has done so, precisely to circumvent perceived Senate opposition.” See Sahil Kapur’s reporting on the GOP brief.

    But there is nothing perceived about the opposition Republicans have mounted to hamstring the NLRB and for that matter greatly slow the efforts of the president to fill vacancies on the federal bench, which has resulted in a crisis on the bench with vacancies hovering around 80.

    Today, the Constitutional Accountability Center weighed in on the side of the Obama administration, which has asked the high court to take the case and reverse the D.C. Circuit.

  • May 17, 2013
    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.

  • May 15, 2013
    Guest Post

    by Peter M. Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.

    If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice. 

    Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it. 

    These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.

    What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function.  Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.