WASHINGTON, D.C. | March 20, 2013 -
President Obama’s non-recess recess appointment scheme continues to taint the work of the NLRB. Efforts to overturn board decisions have been moving through various federal courts, challenging the legitimacy of the board itself. The ensuing legal turmoil has posed new challenges at a time when many workplaces are already struggling with a difficult economy.
In January, the U.S. Court of Appeals for the District of Columbia ruled in Noel Canning vs. NLRB that the president’s unprecedented recess appointments are unconstitutional. Political pundits and constitutional scholars will debate the ruling for years to come. And while review by the U.S. Supreme Court is necessary, it does nothing to mitigate the chaos and confusion surrounding the board now.
The Wall Street Journal reports more than 80 companies have cited the recent court ruling as the basis for nullifying board decisions. Businesses including Starbucks and CNN America are arguing board actions should be blocked because its quorum is no longer valid. The Wall Street Journal also notes union leaders are beginning to follow suit.
A truck driver alleged in 2008 that her union failed to follow the rules and assign her work. The board agreed and ordered the union to pay the driver back wages and benefits. The union has refused and may invoke Noel Canning in a renewed effort to throw out the board’s decision. As the union’s attorney put it, “I’ll explore every opportunity to make sure my client doesn’t have to pay anything.”
Each decision by the board is now ripe for this kind of challenge, forcing everyone to spend more time and money in federal court. Workers, employers, and unions deserve a board that functions properly and acts responsibly. Without it, many will be stuck in a state of legal limbo and their rights will be diminished. The president created this mess and it’s time he fixed it by working with the Senate to confirm a full slate of qualified nominees.
In the meantime, Congress cannot stand by as the board exacerbates the problem. The board has ignored our request to cease all activity until this matter is resolved. With each new decision the legal confusion intensifies. The Preventing Greater Uncertainty in Labor-Management Relations Act will stop a bad situation from becoming worse.
The legislation requires the board to cease all activity requiring a quorum until one of three events takes place. First, the U.S. Supreme Court rules on the constitutionality of the 2012 recess appointments. The high court will have the final word on whether the appointments are constitutionally valid. When it does, restrictions in the bill will be lifted.
Second, a board quorum is constitutionally confirmed by Senate. This is precisely the avenue that should have been taken to seat the president’s nominees. Instead, Senate Democrats refused to act on one nomination and the president failed to put forward additional nominees.
Third, restrictions in the legislation will expire following adjournment of the First Session of the 113th Congress. At that time, the terms of the recess appointees will end and limits on the board’s power will no longer be necessary.
It is important to note the legislation only applies to the board. The bill protects the right of workers to petition for and vote in union elections. The bill also does not preclude any injured party – worker, employer, or union – from filing unfair labor practice complaints, and NLRB regional offices are free to accept and process those claims of wrongdoing.
Finally, the legislation ensures all actions involving the controversial recess appointees are reviewed and approved by a board that has been constitutionally confirmed. This is a fair way to ensure the due process rights of all parties subject to the board’s jurisdiction are protected.
Despite what critics may say, advancing the legislation before us today is a decision we do not take lightly. It is unfortunate the president’s political ploy has put us in this difficult situation. However, the alternative is to ignore the crisis and allow further labor-management instability to wreak havoc on workplaces.
I commend my colleague from Tennessee, Dr. Phil Roe, for introducing the legislation. He and others, including Representatives Mike Kelly and Steve Womack, recognize that Congress cannot stand by and do nothing.