On December 13, 2012, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a 33-page report accusing the National Labor Relations Board (NLRB or Board) of express pro-union bias, pursuing a program of aggressive tactics designed to promote union agendas, making substantive decisions without legal authority, violating its own ethical and procedural rules, and hostility to Congressional oversight. The report is titled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate.” For employers that have been involved in cases brought before NLRB this year, the implications of this report could raise questions about those decisions or even cast them into doubt.
The report summarizes its theme as follows: “[T]he NLRB appears to be sacrificing fairness to ‘job creators’ in order to promote pro-union policies. To make matters worse, its leadership disregarded ethics and internal rules along the way.” Specific charges in the report include:
The Committee, chaired by Darryl Issa (R-Calif.), has had the NLRB in its sights at least since 2011, when the Committee commenced an investigation of NLRB’s complaint against Boeing. During that investigation, the Committee discovered internal NLRB emails that form the basis of some of the charges in the report. However, many of the charges in the report are unrelated to that investigation, and have been widely reported elsewhere in the past. Given the Committee’s decision to publicly release a report listing all of these issues, as well as the politically charged language it has used in the report, it now seems clear that the Committee’s leadership has decided to take whatever measures are available to it to curb what it perceives as an activist, job-killing agenda on the part of the NLRB. Specific legislative initiatives designed to restrain the NLRB will presumably be seen in the near future, at least in the House of Representatives.
It should be noted that the term of the only Republican board member, Brian Hayes, expired on December 16, 2012. That leaves only three members, all Democrats. All three of these members have pro organized labor resumes. Of these, only Chairman Mark Pearce has been confirmed by the Senate. While three Members is a quorum, there will not be a quorum if the other two members, both recess appointments, are determined to have been appointed unlawfully.
In New Process Steel, L.P. v. NLRB, the Supreme Court ruled in 2010 that the NLRB acted without authority when it operated with only two members during a 27-month period. The effect of that ruling was to cast a cloud over hundreds of Board cases, many of which were supposed to be reconsidered by the current Board. But even prior to the departure of member Hayes, the Board has again been without a quorum all this year if the January 2012 recess appointments are ruled to have been unlawful. This would bring even more uncertainty and doubt to employers that were involved with cases brought before the Board during this time.
If the recess appointments are ruled lawful, trouble could still be coming in 2013. Chairman Pearce’s term expires in August, and the recess appointments will expire at the end of 2013. The Board cannot continue doing its business without the addition of new members, but if Congressman Issa’s Committee Report is any indication, the President may find it difficult to get Republicans to cooperate in that effort.
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