Is There a Face-Off Under Way Over NLRB Decisions?

104240128--legal, business conflictI know I’ve been writing a lot about the National Labor Relations Board on this blog, but I am truly no authority. Just a curious observer, especially considering the weight the board’s decisions hold and the impact they have on the readers of our magazine.

So my latest curiosity has to do with this recent post on the HR Policy Association’s website, detailing the House Education and the Workforce Committee’s passage during the week of March 18 to 22 of a bill requiring the NLRB to cease all decision-making until the legal status of the Board’s members has been resolved.

As the post states, the “Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120) was prompted by the recent decision in Noel Canning by the D.C. Circuit effectively nullifying the recess appointments of two of the three sitting Board members, thus bringing the Board below the three-Member quorum required for Board decisions.”

For reference sake, here is my latest blog post on the NLRB’s decision to seek the U.S. Supreme Court’s review of Noel Canning v. the National Labor Relations Board, along with a link to the actual decision in that case. As I note there, the NLRB has until April 25 to get its review petition to the highest court. The HRPA says in its post that the Supreme Court review probably won’t happen until “next fall at the earliest.”

Here’s how Committee Chairman John Kline (R-Minn.) sums it up in the HRPA piece:

The best way to avoid further damage is for the President to work with the Senate to confirm a full slate of qualified nominees.  In the meantime, Congress must take action to prevent a bad situation from becoming much worse.  H.R. 1120 is an appropriate congressional response that will help ensure America’s workplaces aren’t forced to confront even more uncertainty.

Meanwhile, and this is where my curiousity comes in, here is the NLRB’s summary of decisions for the week of March 25 through 29. Looks like there’s no slowing down there. And I’m not hearing or seeing any evidence that this committee’s bill passage has gotten the NLRB’s attention or raised its concern. No statements or news stories there that I can find.

Just curious. Just sayin.

One thought on “Is There a Face-Off Under Way Over NLRB Decisions?”

  1. Second try at posting a response:

    Kristen, let me introduce myself. Feel free to check my profile. As a retired NLRB ALJ I’m familiar with both the political landscape and the substantive law the NLRB applies.

    Your question gives some weight to the legislative process and asks why the NLRB isn’t paying attention. As a matter of proper administrative law, an agency can never do that. The Board and all other agencies, simply apply the law they are mandated to enforce. When a president signs new legislation changing the agency’s direction (no matter which agency it might be) that is the point where the agency follows the new law. This sort of thing is nothing new for the NLRB. Legislation is proposed frequently. Yet, the only major changes since 1935 have been the Taft-Hartley Act (1947), the Landrum Griffin Act (1959), the Postal Reorganization Act of 1970, the 1974 reach to cover all health care institutions, and a 1980 religious exemption. In none of these did the Board act until passage of the applicable amendment to the NLRA. In fact, the Board has a long policy of not commenting on proposed legislation, so its silence here is the norm. It does not even offer its opinions about such proposals to the Congress. As an institution, it certainly never commented on the proposed Employee Free Choice Act and it never became law.

    So your question finds itself up against that background. Until both houses of Congress pass an act and the president signs it, the Board must simply proceed under its current mandate.

    The DC Circuit’s holding in Noel Canning is treated similarly. It is only one court’s decision in one case. In fact there are three courts which have upheld the Board’s view of the legal issue. And, the DOJ is requiring the Board to do that here as it appeals the matter to the Supreme Court. The DC Circuit’s decision is not a final order that needs to be followed as long as appeals are available. Why should The DC Circuit opinion be given precedence over its sister appellate courts? They are all equal.

    The GOP Congressmen, including Kline and Issa know this, but are trying to make political points through rhetoric rather than law. The House bill is unlikely to receive any support from the Senate. So, as with many other proposed amendments to the NLRA, or spending limits put into the funding statute, this effort will no doubt come to naught without any legislation. (The spending limit is particularly pernicious, fed into the budgetary process, since it is designed to entirely shut the NLRB down, regardless of the consequences. If that were to occur we’d revert to pre-1935 non-regulation, something most responsible citizens, as well as management and labor, do not really want. The Wagner Act in 1935 was the answer to that unholy mess. It and the modified NLRA, still serve as the brakes upon that sort of wild west mentality.

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