by Ann C. Hodges, Professor of Law, University of Richmond
Justice delayed is justice denied. This commonly used axiom best describes the enforcement of the National Labor Relations Act since 2007. For 27 months beginning in late 2007, the enforcing agency, the National Labor Relations Board operated with only two of its five positions filled as a result of legislative paralysis and lack of action by the executive branch.
In June 2010, the Supreme Court, in New Process Steel v. NLRB, invalidated over 600 cases decided by the Board during that time, holding that the delegation to power to the two members before the expiration of a third member’s term in 2007 was invalid. The Board must have at least three members to act, according to the Court.
Maintaining confirmed members on the Board has proved to be extremely challenging in recent years. Nominations have not received high priority and confirmation has proved extraordinarily difficult, for many of the same reasons that nominations to other agencies and federal courts have failed.
As a consequence of the inability to obtain confirmation of nominees, President Obama has resorted to recess appointments, like many presidents before him. Yet the D.C. Circuit cast serious doubt on the tactic in its unprecedented January 2013 decision in Noel Canning v. NLRB, which held the most recent recess appointments invalid because the Senate was not in full recess between sessions.
The NLRB currently has only three members and only one of those is not a recent recess appointee subject to the Noel Canning decision. The sole confirmed member’s term expires in August.
While the delays in confirmation are not unique to the NLRB, there are several factors that make these dilatory actions particularly egregious. As noted, the Board cannot act if its membership complement falls below three. Yet the NLRB has exclusive jurisdiction over representation and unfair labor practice cases, so parties whose rights are violated have no alternative forum if the agency cannot act. Additionally, the impact of agency paralysis falls far more heavily on employees and unions than on employers, who also may be affected.
Employees who are fired for engaging in activity protected by the law will wait far longer for any remedy, unemployed and without income in a bad economy. Even the potential for such delays will likely discourage employees from trying to organize a union or obtain some change in their working conditions because the risk is simply too great. Employers resistant to unionization can simply flout their bargaining obligations knowing that by the time of NLRB enforcement of the bargaining obligation, employees may well have given up on the union out of frustration.
Employers suffer little from agency delays. The two unfair labor practices that could cause significant damage to employers are secondary boycotts and recognitional picketing. When a preliminary investigation reveals reasonable cause to believe that unions have engaged in such activity, the agency must seek an injunction from the federal courts to stop the activity while the case is litigated. Since the investigatory arm of the agency will continue to operate while the adjudicative body cannot for lack of a quorum, employers adversely affected by even possibly unlawful picketing can get injunctive relief while the issue is litigated. The union will be unable to return to picketing until the Board is able to act on the charges, potentially losing the ability to engage in lawful activity. And the secondary boycott provisions also allow the employer to sue for damages as a result of unlawful activity, the only such provision in the law.
The unequal impact of NLRB inaction is almost certainly not lost on Republican legislators, who have attacked the NLRB relentlessly in recent years. They held hearings and demanded documents during litigation of an NLRB complaint against Boeing, despite agency protests that these actions interfered with an active and ongoing case. They have filed amicus briefs in support of employers challenging actions of the agency in court. The House voted to freeze the work of the Board and bar enforcement of its decisions after the Noel Canning decision. Yet Republican legislators were noticeably silent when a Republican Board member resigned after an investigation revealed that he leaked confidential documents to a former Board member representing employers and serving as a labor adviser to Mitt Romney’s presidential campaign.
Rights without remedies are useless. Workers deserve better than a law without an enforcement mechanism. The strategy of frustrating enforcement of laws that certain members of Congress don’t like, but cannot gain sufficient support to overturn, should stop. The Senate has an opportunity to confirm a new set of Board nominees and has scheduled a committee hearing for May 16. The nominees include the three current members, along with two Republican lawyers who represent management. The Senate should move expeditiously to restore access to justice for workers protected by the NLRA, as well as unions and employers.