Only a few hours after the U.S. Court of Appeals for the District of Columbia Circuit issued a decision that the National Labor Relations Board does not have a legal quorum to act, the board’s chairman, Mark Pearce, issued a press release announcing the board’s intent to ignore it.
The timing and content of Pearce’s statement show a board so fixated on serving the interests of organized labor it no longer knows its place nor weighs the consequences of its actions on the public interest. Although Pearce may believe that the president has the authority to make recess appointments over a three-day break in ongoing Senate sessions — or over lunch, for that matter — it is not the place of the NLRB chairman to disagree with a circuit court on a constitutional question that goes to the heart of the political appointment process and one in which he has a partisan interest.
The board defies the federal court.
Continuing to issue decisions in defiance of the court decision undermines the rule of law that NLRB members are sworn to uphold. The D.C. Circuit is not any court for the NLRB. Any board decision can be appealed to that court as a matter of right. Consequently, Pearce’s board may continue to issue decisions, but they will be nullified on arrival at the courthouse ab initio — as if they had never been issued.
When board decisions are quickly followed by their judicial nullification, how can the public’s faith in the rule of law and the board’s legitimacy not be seriously undermined? Continuing to issue decisions under these circumstances forces parties to spend time and money litigating cases before a board that has been declared without authority to hear them. Workers whose vote for a union is upheld by the board will reasonably demand to know why their vote has suddenly lost all meaning.
The board is not impartial.
The Congress that passed the Wagner Act of 1935 contemplated a board of “impartial government employees.” That was before Big Labor selected the political process to stem its decline and the Democratic Party as its vehicle of choice. Now, in exchange for hundreds of millions of dollars in political donations, Big Labor demands appointees to the NLRB serve its interests.
None have done so in a more partisan, less compromising, more militant fashion than the members of the Obama board. Consider:
A “quickie” election rule to silence employers before an election.
A rule requiring nearly all 6 million private employers to post a partisan notice intended to strengthen the hand of organized labor.
A decision authorizing unions to represent small bargaining units of employees to make union organizing easier but that threatens labor stability and dramatically drives up an employer’s labor relations costs.
The board has abandoned working together.
Judge Harry Edwards of the D.C. Circuit described judicial collegiality as “a common interest ... in getting the law right,” resulting in judges who are “willing to listen, persuade, and be persuaded, all in an atmosphere of civility and respect.” The Obama board has demonstrated it has no interest in collegiality or the tempering influence collegiality may have on its ideological preferences.
For decades, the board has required that both parties be represented before it will issue a major decision. The Obama board eliminated this wise practice that promoted full deliberation and dialogue by disingenuously denying the practice ever existed.
Seared in the minds of former board members is the spectacle of a highly unusual, last-minute public meeting called by Pearce to intimidate his Republican colleague into voting on a final “quickie” election rule the majority crafted but that their colleague by design would have little time to consider.
The nation needs neutral decision-makers.
The board’s hyperpartisanship has hollowed out its legitimacy; its in-house militancy has made changes by a future Republican-controlled board beyond reasonable expectation.
It is time for Congress to consider transferring the board’s authority to a more neutral body, such as the federal judiciary. Lifetime appointments put federal judges beyond the reach of the demands of either stakeholder. And federal judges are not subject to the pressure felt by a board member who anticipates returning to law practice and may hesitate to antagonize a future client — much less an entire constituency such as the labor movement.
Transferring the board’s authority to the federal judiciary will give business confidence in its balanced application and the public the assurance that the protection of employee free choice on the question of unionization will be the central focus of this important American labor law.
Sen. Jeff Flake, R-Ariz., takes a selfie with his cut-out head during the Hoops for Youth 16th annual charity basketball game held at George Washington University's Smith Center, September 8, 2014. The members of Congress team beat the lobbyist team 46-40. Buy photo here.