Short-Term Solution to NLRB Impasse: A 4-Member Board
The National Law Journal
The world of labor management relations is currently embroiled in a major upheaval, which has spread beyond the usual union/management battleground. In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that President Obama's recess appointments to the National Labor Relations Board were unconstitutional, thus leaving the board with only one legitimate member and without a quorum. The case is expected to be decided by the U.S. Supreme Court, but not until sometime next spring. In the meantime more than 1,000 decisions by the board at least since January 2012 are in a state of legal limbo.
Apart from the Noel Canning case, the board will be nonfunctional in late August of this year, when Chairman Mark Gaston Pearce's term ends, leaving the board with only two members. The Supreme Court has previously held that fewer than three members is insufficient to form a quorum to decide cases. This condition could last for years.
The Noel Canning case, of course, drives at the heart of the Constitution's separation-of-power structure with implications far beyond the NLRB appointees and therefore will gather broad national comment.
Real as this recess appointments crisis is, it masks the true causes of the demise of the NLRB. The board, as a New Deal agency created in 1935 to administer and enforce the National Labor Relations Act , was significantly amended in 1947 but has become increasingly obsolete since then. The economic conditions, workplaces, social attitudes and position of the United States in a world economy are vastly different from what they were in the industrial world of 1935. The law and the NLRB are designed to function in an adversarial paradigm whose parameters are based on a two-lane highway in what is now a six-lane highway world. Moreover, the heart of the problem is the underlying premise of an adversarial relationship between employers and unions as the representatives of employees.
While unions, functioning as an adversary opposed to management in all respects, saw their percentage of the private-sector workforce reach 35 percent in the mid-20th century, that percentage has declined to under 7 percent. Part of unions' assessment is that this decline in union membership is due to employer conduct, both lawful and unlawful. Unions believe that the best way to change the dynamic of union declines and perceived employer hostility to unions is through the NLRB.
Efforts in Congress to change the law by either management or labor have failed, and if legislative attempts continue to be one-sided efforts to gain an advantage by one side or the other in the on-going adversarial construct, they will fail also. In the meantime, there is the immediate problem of what to do about the failure to have a board that can issue decisions.
Since at least the Reagan administration labor and management have sought to influence the appointment of board members to advantage one side or the other. It's a simple dynamic. If unions can get a Democrat president to appoint three union advocates to the board, the board's decisions will tend to favor labor's agenda. If management can achieve the opposite with a Republican president, management will be favored by decisions, if only to undo what a labor-friendly board has done. Of course, both sides believe they are acting in the employees' best interests, which is what the statue is supposed to protect.
This pendulum swing has been going on for decades, but with each recent change from a Democrat or Republican administration the arc of the swing has increased. Each administration's board appointments have produced an increasing number of overturned board decisions or new policy decisions that appear to be more and more partisan. The oldest game in political societyif you can't change the law, change the judges.
The board appointment process, however, reached a new level of exasperation during the second term of President George W. Bush. The Senate, under Democrat control, refused to confirm Bush's board appointees and also would not go into recess so as to prevent recess appointments. Bush did not attempt to make recess appointments when the Senate said it was not in recess, and the board had almost two years of no quorum as a result. When the same phenomenon occurred with Obama, he made "recess" appointments in the face of the Senate not being in recess and these appointments have now been struck down by the Noel Canning decision.
In the short-term, a political compromise should be reached to appoint and confirm four board members, with the president designating the chairman from among those four. Two of the members would be Democrats and two Republicans. A four-person board would not likely change decisional law because it would take a three votes to do so. This would stop the pendulum swing and, if it could be put in place for three or four years, it might allow a comprehensive overhaul of the law the board is to enforce.
Admittedly, this is a short-term solution to a long-term problem. It is time for a long-overdue dialogue on how to construct a law that is relevant to today's workplace while having a mechanism for stability and predictability in its interpretation and enforcement. That can only be achieved if management and labor abandon efforts to push through rewrites that favor one side over the other and instead find areas where they can both agree. Hopefully, the Noel Canning upheaval will serve as a wake-up call that such a dialogue is long overdue.
Peter J. Hurtgen is the former chairman of the National Labor Relations Board and director of the Federal Mediation & Conciliation Service.
This article originally appeared in The National Law Journal.