For the NLRB, Confirmation Peace May Be Fleeting

The Senate’s vote to confirm Richard Griffin as the National Labor Relations Board’s general counsel this week brought the board its first full slate of appointees in a decade. Democrats and labor advocates, worn down by years of political skirmishes over the NLRB, hailed Tuesday’s vote as the end of a difficult chapter in the board’s 78-year history.

“It is my hope that we can provide this important agency with some much-needed certainty, mark a new positive chapter for the NLRB and finally put an end to the delay and obstruction that has recently become all too familiar,” said Sen. Tom Harkin, D-Iowa, chairman of the Senate Health, Education, Labor and Pensions Committee.

But any hope that the NLRB will suddenly be free from political tussles is probably misplaced.

Yes, the agency now has all five duly confirmed board members — the product of a summer deal between Senate Republicans and Democrats — and it now has a confirmed general counsel to run its day-to-day business. But the end of the confirmation saga is not likely to end arguments over the perceived politicization of a board that stands at the troubled border between labor and management in the business world — and it certainly will not halt long-standing efforts to overhaul the NLRB.

Those debates, after all, have been around for decades. It will take more than a deal on nominees to resolve the future of the labor board.

As the Griffin nomination approached its crucial cloture vote, Republicans in the Senate were already warning they would keep up the pressure on the NLRB.

Sen. Lamar Alexander, R-Tenn., the ranking member of the HELP Committee, said Monday that although he intended to vote for cloture, he would vote against Griffin’s confirmation “because I’m concerned about the direction of the NLRB.” Alexander said it appeared to him that the board was behaving “as an advocate more than an umpire.”

As a former union lawyer, Griffin risks turning the board into even more of an advocate for labor, Republicans say. Alexander said he and other senators are working on legislation to change the agency’s role and make it more impartial. He said he hoped to introduce it sometime this fall.

“The board has become far too politicized. This didn’t start with the Obama administration but it’s gotten worse with this administration and it’s moved more and more toward the side of union advocacy,” he said. “Swinging back and forth on important labor policy issues does the American working man and woman no good in this time of underemployment and unemployment.”

Alexander’s comments echoed recent moves by Republicans in the House to take a look at the NLRB. Rep. John Kline, R-Minn., chairman of the House Education and the Workforce Committee, has long supported updating the National Labor Relations Act, the 1935 law that regulates relationships between workers and employers and that created the NLRB to adjudicate disputes.

Despite a few amendments over the years, much of the law remains unchanged, even though the American workforce looks nothing like it did during the Great Depression.

Republicans say the NLRB under the Obama administration has become beholden to labor unions and has given up on being an unbiased arbiter. In response, Republicans have introduced legislation that would restrict the NLRB’s authority and tighten restrictions on labor union efforts to organize workplaces.

Those arguments have swirled around the board since its inception.

The law that set up the NLRB as an independent agency charged it with resolving labor conflicts and setting national labor policy. It mandated a powerful general counsel’s office to run the agency’s day-to-day operations and to prosecute those who violate the act. The five-member board, made up of presidential appointees, rules on cases and promulgates regulations. In practice, however, about 90 percent of the cases are settled before coming before the board.

By tradition, three of the members belong to the president’s party and two to the opposing party. That has caused predictable swings in the board’s priorities depending on the party in the White House. Just as predictably, the opposing party has accused the NLRB of becoming overly politicized.

That explains the GOP’s current complaints. It also explains the Democrats’ complaints in September 2007, when a labor board composed of Bush appointees released 61 rulings weakening workers’ bargaining power, a move unions dubbed the “September Massacre.”

Many of those rulings overturned long-held precedent. Under Obama, the board has gone about reversing some of the 2007 rulings. Critics say this system fosters uncertainty and makes labor policy subject to political whim.

At various points, both labor and business advocates have argued for a rewrite of the law to reduce these swings in policy and to reduce the level of political interference in the application of labor law. In 1987, AFL-CIO President Richard Trumka, then head of the United Mine Workers, called the law a “dangerous farce.” Today, Republicans are pushing to change it.

“This agency and this law have been controversial from day one. It goes through different periods where the controversy seems to be quite center stage and then it recedes and then there’s more stability or acceptance of the process,” said Wilma B. Liebman, a former NLRB chairwoman. “Certainly the last few years we’ve witnessed an almost escalating or accelerating controversy.”

So far, Congress has not been able to enact a legislative update. That has left lawmakers to rely on the confirmation process as their only real point of leverage.

As a result, the NLRB has rarely fielded a full slate of five board members. Board appointments became even more relevant in 2010, when the Supreme Court ruled that the NLRB could not rule on cases without a quorum of at least three members.

In 2011, the board came close to losing its quorum after Republican senators held up board nominees to protest an NLRB complaint against a Boeing plant in South Carolina. That led Obama to appoint three members to the board in January 2012, claiming the Senate was in recess. The Supreme Court is scheduled to hear a legal challenge to those recess appointments this term.

Earlier this year, the board was once more in jeopardy of losing its quorum, which led Senate Majority Leader Harry Reid to threaten to change filibuster rules in order to seat the nominees. But a July bipartisan agreement averted the “nuclear option” and resulted in the confirmation of five members.

How long that agreement will last is an open question. One board member, Nancy J. Schiffer, will reach the end of her term next year. Another member is due to step down in 2015. Absent new appointments, the board will lose its quorum in August 2016, in the midst of that year’s presidential campaign.

And it’s hard to imagine that a Congress so tied up in partisan warfare will be able to overcome its current paralysis to enact sweeping changes to the country’s labor laws anytime soon. That means lawmakers are likely to continue to try to make labor policy through the appointment process. It also means the recent truce on NLRB confirmation fights is just that — a truce, and not an end to the larger war over the direction of the board.

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