Labor Appointments at Ground Zero of Nuclear Option Fight

The Justice Department responded by releasing a memo maintaining that appointments made during pro forma sessions are within the bounds of the Constitution. But on Jan. 25 a U.S. Court of Appeals for the District of Columbia panel invalidated the appointments, declaring they were not made during a Senate recess.

Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate Health, Education, Labor and Pensions Committee, called on Block and Griffin to leave the board, citing the Court of Appeals decision, but they chose to stay and have participated in more than a thousand cases that, Alexander said, are subject to being vacated if the Supreme Court finds the appointments unconstitutional.

In April, Alexander introduced legislation that would prohibit the NLRB from taking any action until the board members constituting the quorum have been confirmed by the Senate.

On May 22, the Senate Health, Education, Labor and Pensions Committee sent the entire slate, which Sen. Tom Harkin (D-Iowa), the committee chairman, characterized as “as exceptionally well-qualified package,” to the Senate floor for a vote. There it has festered under threat of filibuster.

Sen. Amy Klobuchar (D-Minn.) said the board’s “impact is critical to workers” and that lawmakers have “a responsibility to show some leadership and begin the process of vetting these nominees in the Senate so the NLRB can get back to work.”

The NLRB, she said, works to prevent children from being exploited and forced to work instead of going to school, institutes fair pay laws that ensure women get equal compensation for equal work,  and oversees working conditions to protect people from being injured on the job and laws that uphold the fundamental rights of workers to organize.

“This is about providing stability and consistency to workers and businesses, but it is also about doing what is right for American families,” Klobuchar said. “My mom was a teacher. She taught public school until she was 70 years old so I have seen firsthand how important it is for workers to have that right to organize, to have that right to make their case. This is why I have always believed we need a good NLRB, a fair NLRB.”

But business interests maintain the board is overly protective of labor interests, particularly during the Obama administration. Bruce Josten, executive vice president for government affairs at the U.S. Chamber of Commerce, said the current board has pursued “an aggressive agenda favoring the unions.”

G. Roger King, an attorney representing the U.S. Chamber of Commerce, said the current board has “exercised no restraint and indeed has pursued an aggressive agenda of overturning decades of precedent and greatly expanding the reach” of the law of the National Labor Relations Act.

“Employers, especially small- and medium-sized entities, are having great difficulty attempting to draft policies that will comply with the board’s recent decisions,” King said. “…Recent board decisions and others make it very difficult to determine what is the state of the law. This leads to the unfortunate conclusion that the current board, through the votes of its recess appointees, is engaging in a subjective, overreaching and results-oriented campaign to find both union and non-union employers guilty of violations of the National Labor Relations Act.”

Sen. Lindsey Graham (R-S.C.), a longtime NLRB critic, has offered three amendments to the agency’s budget proposal intended, he said, to protect businesses from the board’s job-killing decisions.

“The NLRB has been the Grim Reaper of job creation,” Graham said, noting that “they seem hell-bent on interjecting themselves into private sector business decisions for purely political reasons.”

“On issue after issue the NLRB is destroying jobs and making the United States uncompetitive in the international marketplace,” he said.

Graham wants to prohibit the board from permitting small groups of employees to organize separately in the same workplace, citing a 2011 decision that said unions can essentially organize mini bargaining units. He also wants to limit the board’s use of funds to streamline and shorten union-organizing elections and prevent the NLRB from using funds to sue states over secret-ballot election requirements.