The National Labor Relations Board (NLRB), normally with five members, now has three. And not long from now, it may have just one. President Obama's apparent desire to circumvent Senate intent is part of the problem. On Wednesday, December 5, a three-judge panel for the U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments in a case concerning Obama's filling of three vacant NLRB slots nearly a year ago. The case, Noel Canning v. NLRB, originated in a complaint filed by a Washington State business that the president had usurped the Senate's constitutional powers of appointment because lawmakers were not in recess. And since these were not actual recess appointments, the president lacked the authority to make them. The eventual outcome will have implications for the board's ability to operate over the long term.
Union leaders, frustrated over their inability to sway Congress, more than ever are relying upon the National Labor Relations Board to enact stealth legislation. The board, now with a Democratic majority, seems willing to oblige them. Case in point: an NLRB proposal announced last Tuesday, June 21, and published in the Federal Register the next day, to substantially reduce the duration of election campaigns for union representation. While the board touts the regulation as an overdue streamlining of an inefficient system, its covert motive, say critics, is to hamstring employer opposition.
Labor leaders enjoyed a number of triumphs during the 111th (2009-10) Congress. But they are seething over the fact that a Republican Senate minority once again managed to block proposed legislation to force private-sector nonunion employers to recognize a union as a collective bargaining agent if that union persuades a majority of affected workers to sign a card indicating a desire to join. For them, this "card check" legislation is the Big One that got away, especially in a time of continued declining union membership. Given last November's elections, union officials are even less enthusiastic about their prospects in the new Congress. That's why, more than ever, they are turning to the National Labor Relations Board (NLRB) as a de facto legislative body. And the NLRB, given its current composition, may well deliver, piece by piece.
The National Labor Relations Board soon will be back up to five members. But for more than two years it was short by three. Observers wondered how it managed to function. The U.S. Supreme Court last Thursday ruled it shouldn't have. By a 5-4 margin, the High Court ruled that the NLRB, its ranks diminished by congressional gridlock, had violated its statutory authority in deciding cases during that time. Justice John Paul Stevens, writing for the majority in New Process Steel v. NLRB (U.S. No. 08-1457), termed the two-member board's operations a "Rube Goldberg-style delegation mechanism...surely a bizarre way for the Board to achieve the authority to decide cases." The decision could reopen up to 600 NLRB decisions. That's a workload the board no doubt wishes it could do without.