- September 2012
Despite the election in 2008 of the most pro-labor President and Congress in decades, organized labor chalked up very few legislative victories in the 111th Congress when they controlled both Houses of Congress. With the election in 2010 of a Republican majority in the House and significant GOP gains in the Senate, organized labor’s legislative agenda ground to a halt in the 112th Congress. Pro-labor legislation has not been taken up in either house of Congress this year.
On the other hand, the new House GOP majority tackled labor issues on a number of legislative fronts in this Congress. They passed H.R. 2587, the “Protecting Jobs from Government Interference Act” – the Boeing Bill – to forbid the National Labor Relations Board from telling a company where it can open and run its facilities. And they passed the “Workforce Democracy and Fairness Act”, which would have blocked implementation of the National Labor Relations Board’s (NLRB) “Ambush Elections” rule and Specialty Healthcare decisions. Unfortunately, neither of those bills was considered by the union-friendly Senate Majority, and a separate effort in the Senate to block implementation of the NLRB’s “ambush election” rule failed on a Party-line vote (no Democrat voted for the measure, and only one Republican opposed it).
Although labor has had few legislative victories, the pro-labor assault on the American workplace continued to manifest itself aggressively in the regulatory arena. And since organized labor knew they would not see action on their legislative agenda in the GOP-lead House in the 112th Congress, they greatly intensified that regulatory assault. (Please see separate staff report on the Regulatory Agenda.)
Recess appointments to the NLRB:
President Obama ensured that the labor regulatory assault will continue by his controversial January recess appointments of three new members of the NLRB.
With the expiration on December 31st of the term of recess-appointed Board Member Craig Becker, the Board was reduced to two sitting members, Chairman Mark Pearce (D) and Member Brian Hayes (R). Because of the Supreme Court ruling in 2010 in New Process Steel that the Board must have at least three of five sitting members in order to rule on cases, the end of Becker’s term meant that the Board would not have been able to continue its aggressive rule-making and case rulings.
It was hoped that a two-member Board unable to act would provide an incentive to the Administration and Senate to make a real effort to find acceptable compromise nominees – no more radical labor advocates like Craig Becker – so the Board could continue to function.
Unfortunately, finding common ground with the Senate was not in the Administration’s political game plan. Last December, President Obama nominated pro-labor advocates to fill two of the Board vacancies (a Republican had been nominated for the GOP seat on the Board a year ago, but the Democrat-controlled Senate refused to act on that nomination). And in January, before the Senate could take any action at all on these nominees, President Obama recess-appointed all three nominees to the Board. (See our separate staff report on this Constitutional conflict.)
Legal challenge to the recess appointees:
But the recess appointments ensured that a cloud will hang over every decision the new Board makes. Committee leaders in both houses of Congress announced plans to pursue legislation to address the recess appointments, and resolutions of disapproval were threatened in both houses.
More important than any Congressional action, however, an immediate court challenge to the recess-appointed board was filed, with additional challenges filed throughout 2012 as the constitutionally-challenged Board voted on new rules and cases. Just 9 days after the recess appointments were made, the Coalition for a Democratic Workplace (the business coalition which NAW helps manage), and other parties in the lawsuit challenging the NLRB’s Notice Posting Rule filed papers with the court arguing that “the Defendant National Labor Relations Board has lost its authority to implement and enforce the challenged Rule due to the expiration of Member Becker’s term and the President’s failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .The President’s purported appointment of them on January 4, 2012 was unconstitutional, null and void. . . . The Supreme Court having declared that the Board lacks authority to act with only two members . . . Co-Plaintiffs are entitled to an order from the Court declaring that the Board no longer has authority to implement or enforce the Notice Rule on its scheduled effective date of April 30, 2012.”
The judge in the Notice Posting lawsuit denied CDW’s request to modify our complaint to challenge the recess appointments, but in the interim, several additional challenges to the appointments have been filed. CDW and others have filed amicus briefs, and in one case – Noel Canning – CDW has been granted the right to file a brief as an intervener in the case. The CDW brief in the Noel Canning case is due September 19th with briefing concluding in January of next year. The court has yet to schedule oral argument. We do not expect a ruling until late Spring/Summer 2013. Our attorneys believe the court will have to eventually address the issue of the recess appointments in this case.
In the interim, every decision the “recess” appointed Board members make is subject to challenge, and the legitimacy of the actions of the Board itself will remain under a legal cloud until the issue of the legitimacy of the recess appointees is resolved.