Tomorrow the Senate Health, Educations, Labor and
Pensions Committee will mark-up nominees to the National Labor Relations Board.
The nominees are Democrats Mark Gaston Pearce (current NLRB chairman being renominated),
Richard Griffin and Sharon Block (both recess appointments) and Republicans
Harry Johnson and Philip Miscimarra. All are highly qualified nominees. The likeliest outcome is that the nominees
will be reported out of committee on a party-line vote.
These nominations have been tainted by rulings by both
the DC (Noel Canning v. NLRB) and Third (NLRB v. Vista Nursing and
Rehabilitation) circuit courts. In both instances the circuit courts ruled that
the intrasession recess appointments of Griffin and Block were
unconstitutional. Republicans, namely Senator Lamar Alexander (R-TN) have
rejected the validity of two of the three current NLRB board members (again,
Griffin and Block) due to the circuit court decisions, adding that both should
have stepped down from the NLRB after those decisions so as to properly
recognize the courts’ rulings.
A realistic assessment of Sen. Alexander’s position is
that it is not one based on principle, but instead is one of expediency and
obstruction. Senate Republicans largely desire to use procedure to depose the
NLRB so that is unable to function in its role to resolve disputes between
labor and management.
Prior to the DC and Third circuit court decisions the
precedent had been established that recess appointments are constitutional. The
precedent rests with three previous circuit courts opinions: US v. Allocco in
1962 where the Second Circuit Court affirmed intersession recess appointments;
US v. Woodley in 1980 where the Ninth Circuit Court did the same; and Evans v.
Stephens in 2004 where the Eleventh Circuit Court affirmed intrasession recess
appointments.
In 2004 President George W. Bush made an intrasession
recess appointment of William H. Pryor to a judgeship on the 11th
Circuit Court. In that ensuing decision contemplated the court’s legitimacy
given the intrasession appointment of Judge Pryor, the 11th Circuit
Court found that the appointment was legitimate to “assure proper functioning
of the government,” and that recess appointments “extend to the intrasession
and intersession.”
Notably, Sen. Alexander was in office at the time (2004) and
never raised any concern about the constitutionality of the Pryor intrasession recess
appointment as is now his position on the NLRB recess appointments.
Further, in NLRB v. Laurel Baye Healthcare of Lake Lanier,
Inc. the Fourth Circuit Court found that having only two sitting members of a
board of five was not a quorum and therefore NLRB decisions reached with less
than a quorum were invalid. Regardless, the NLRB with a board membership of two
continued to issue decisions. At no time thereafter did Sen. Alexander raise any
concern about the NLRB’s validity until recently introducing a bill to address
the issue while the current NLRB nominations are pending.
Tomorrow at the HELP Committee mark-up Sen. Alexander
will protest two of the five nominees for the reasons above and vote against
those nominations in committee. With Minority Leader Mitch McConnell (R-KY)
already demanding that the Griffin and Block nominations be withdrawn by the
White House it is clear that Senate Republicans are intent on disabling the
NLRB so as to leave American employees and employers without the ability
collectively bargain, or the ability to address certain unfair private sector labor
and management practices -- for the first time in 78 years!
Rather than attempt to repeal the National Labor Relations
Act of 1935 outright (and face the controversy that would follow), the
Republican Senate conference is using procedure to disable the only recourse
labor and management have to resolve disputes, to the benefit of management.
These tactics, while likely effective, do not pass the smell test.
No comments:
Post a Comment