- January 2013
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 was not taken up in either house of Congress. Despite the defeat of business-friendly Republicans in both houses of Congress in 2012, many of them replaced by aggressively pro-labor Democrats, the threat of union-backed legislation passing either house remains very low in the 113th Congress.
Although labor has had few legislative victories, the pro-labor assault on the American workplace will continue to manifest itself aggressively in the regulatory arena. With the re-election of President Obama, both the National Labor Relations Board and the Department of Labor are expected to increase their activity and begin moving on regulations that have been in the queue in both agencies. (See separate Staff Report on the Regulatory Agenda.)
Recess appointments and convoluted status of the NLRB:
With the expiration on December 31, 2011, 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. In December, 2011, 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, 2012, before the Senate could take any action at all on these nominees, President Obama recess-appointed all three nominees to the Board.
The President conspicuously ignored the Senate’s constitutional right to provide “advice and consent” on nominations by making these controversial recess appointments before the Senate had any opportunity to review the nominations. As a result, 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. The Coalition for a Democratic Workplace (CDW), which NAW helps manage, was granted the right to file a brief as an intervener in one of those cases, Noel Canning. Briefs in that case were submitted in September, and the court heard oral arguments in the case on December 5th. We are now awaiting a decision from the court.
If the court rules in our favor in the Noel Canning Case and the recess appointments to the NLRB are declared unconstitutional, and with the expiration of GOP member Brian Hayes’ term on the Board at the end of 2012, Chairman Pearce will remain the only legitimately-seated member and the Board would lack the three-member quorum required for it to act.
If the court upholds the recess appointments, the Board will still face the loss of its required quorum on August 27, 2013, when Chairman Mark Pearce’s term ends (leaving only the two recess-appointees on the Board). In that case, it is most likely that President Obama would again make recess appointments to allow the Board to continue to function.
But should the court declare the recess appointments invalid, when Chairman Pearce’s term ends this August the Board will have no members at all. Ironically, the President’s insistence on a resolutely pro-labor Board, and his willingness to make recess appointments ignoring the Constitution he is sworn to uphold, could result in the unprecedented circumstance of completely incapacitated Board with no legally seated members at all.
In the interim, the Board is continuing its aggressive agenda today, despite the fact that every vote they now take will be subject to challenge if the court holds the recess appointments invalid. And it is unclear what the two current recess-appointees will do if their appointments are declared invalid, especially when Chairman Pearce’s term ends in August.