If Republican obstructionism wins out, the NLRB will have no confirmed members when the term of Chairman Mark Pearce expires on Aug. 27, and for the first time, the president will not be able to appoint board members by recess. The real victims of the GOP’s obstructionism will not be the NLRB or “Big Labor,” as Republicans like to state, but tens of millions of private-sector workers across the nation.
In January, the D.C. Circuit Court of Appeals ruled that the president’s most recent recess appointments – including current nominees Sharon Block and Richard Griffin -- were unconstitutional, and thus the board lacked a legal quorum of three members. The Noel Canning ruling has created confusion about the status of over 600 board decisions, and encouraged employers to challenge the board’s legitimacy at every level of its functions.
Last Thursday, the U.S. Court of Appeals for the Third Circuit decided by a 2-1 margin that the president’s earlier recess appointment of Craig Becker in March 2010 was also invalid. According to the logic behind the bizarre decisions, over 300 presidential recess appointments since 1981 would be invalid. The dissenting Third Circuit judge criticized the majority for undoing an appointments process “that has successfully operated within our separation of powers regime for over 220 years.” Perhaps the courts will now consider cases involving the legitimacy of NLRB recess appointments from the Reagan and Bush eras.
It appears that the business community would gladly see the number of confirmed members decline to zero. Employer groups have attempted to stymie the board by filing legal challenges to its new rules on certification elections and notice posting. Earlier this month, the D.C. Circuit struck down the notice-posting rule because ordering employers to post text from federal law violated their free speech rights. It apparently did not matter that employers were required to post the law of the land and not excerpts from the Communist Manifesto. The board’s new election rule – designed to eliminate the worst cases of delay in union votes – may well suffer a similar fate before the courts.
Congressional Republicans would readily force the board to close shop. Sen. Lindsey Graham (R-S.C.) articulated the GOP’s obstructionism in December 2011. When it comes to the NLRB, he explained, “inoperable could be considered progress.” Republicans, like employers, are enraged that the board has actually attempted to do its job.
Republicans have displayed breathtaking hypocrisy over the board. While opposing the president’s nominees, they have introduced a bill that would prevent the NLRB from functioning until it has at least three confirmed members or until the Supreme Court resolves the constitutionality of the recess appointments. Last month, Sen. Lamar Alexander (R-Tenn.) introduced the Preventing Greater Uncertainty in Labor-Management Relations Act. Republicans in the House have already passed a companion measure.
Following the Noel Canning decision, Alexander demanded that Block and Griffin – whose only offense was to say yes when the White House asked them to serve – “pack their bags and go home.” At Thursday’s hearing he accused the president and the recess appointees of displaying a “troubling lack of respect” for Congress – the president for making recess appointments while Republicans were holding pro-forma Senate sessions, and Block and Griffin for continuing to do the work they are paid for. But Republicans have also attacked Chairman Pearce for attempting to improve enforcement of the law.
Republicans are promoting legislation that would incapacitate the NLRB until it has at least three confirmed members at the same time as they are blocking confirmation of the president’s nominees. Their relentless attacks have created uncertainty at the board, and now they are attempting to ensure that the uncertainty becomes permanent. As Sen. Elizabeth Warren (D-Mass.) pointed out, Republicans’ “complete obstructionism” stems from their dislike of the agency itself, not from legitimate concerns about the individual nominees.
As Warren suggests, the current crisis at the NLRB is a political crisis rather than a legal one. The last chance for a functioning board may depend upon the determination of Senate Democrats to gain an up or down vote on the president’s nominees, even if that means changing the filibuster rules to overcome the GOP’s complete obstructionism.
Logan is professor and director of Labor and Employment Studies at San Francisco State University.