Tuesday, May 21, 2013

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.

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