by Jonathan Arogeti
A new rule adopted by the National Labor Relations Board (NLRB) will simplify elections to form unions and delay the appeals process until after those elections. The board said the changes are slated to take effect on April 30, 2012, The Blog of Legal Times reports.
“This rule is about giving all employees who have petitioned for an election the right to vote in a timely manner and without the impediment of needless litigation,” said NLRB Chairman Mark Gaston Pearce.
These changes are part of a more comprehensive rules reform proposal put forth by the board in July. In a release announcing the changes, the NLRB said it would hold for further review the most debate-generating proposals, but that they would push forward with these “less controversial” ones.
AFL-CIO President Richard Trumka (pictured) hailed the move, saying, “It's good news that the NLRB has taken this modest but important step to help ensure that workers who want to vote to form a union at their workplace get a fair opportunity to do so.” He warned, though, “Many more improvements are needed to protect workers' rights. We hope the Board will quickly move to adopt the rest of its proposed reforms to modernize and streamline the election process.”
The U.S. Chamber of Commerce immediately moved to counter the rule change, filing a lawsuit in the U.S. District Court for the District of Columbia.
Meanwhile, similar future decisions by the NLRB are in jeopardy, as the Board is slated to lose its necessary quorum at the end of the month. Currently, only three of the five seats are filled; that number will go down to two when Craig Becker’s recess appointment expires Dec. 31. The Supreme Court held last year in New Process Steel v. NLRB that the NLRB could not legally operate with less than three members, and voided more than 400 NLRB rulings made by only two members.
Victor Williams, a professor at the Catholic University of America Columbus School of Law, writes in Jurist that the Republican obstruction of two pending confirmations to the board amounts to “nullification” and urges president Obama to use his power make recess appointments. Williams argues that senators’ attempt to block recess appointments by holding sessions every three days during the holiday break is without legal authority.
In the fourth year of his presidency, Obama needs and deserves a fully staffed government. Article II, Section 3 charges that the Executive "shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States." Obama must expose confirmation obstruction as nullification and actively campaign against it. To clear the growing vacancy backlog and preserve appointment prerogatives for future presidents, Obama must substantially increase and regularize his use of the Article II, Section 2 recess alternative. Concurrent with signing recess commissions, President Obama should renounce congressional "pro forma sessions" with a simple test: If the Senate is not sitting as a deliberative body able to provide timely confirmation consent, the Executive may fill any vacant federal office.