Playing Political Chess with the NLRB
The National Labor Relations Board has historically been used by presidents as a pawn in a game of political chess, but that game could soon come to an end. Labor lawyers, however, advise employers to keep playing, and to keep following the rules.
By Jill Cueni-Cohen
President Obama earlier this month announced his nomination of two Republican attorneys to fill vacant positions on the five-member National Labor Relations Board: Harry I. Johnson, III, a partner with Arent Fox LLP, and Philip A. Miscimarra, a partner with Morgan Lewis & Bockius LLP. In addition, he re-nominated current NLRB Chairman Mark Gaston Pearce, whose term will end in August. Nominations are also pending for Richard F. Griffin, Jr. and Sharon Block, who are currently serving as Board Members under recess appointments.
"By enforcing workplace protections, upholding the rights of workers and providing a stable workplace environment for businesses, the NLRB plays a vital role in our efforts to grow the economy and strengthen the middle class," said Obama on April 9. "With these nominations there will be five nominees to the NLRB, both Republicans and Democrats, awaiting Senate confirmation. I urge the Senate to confirm them swiftly so that this bipartisan board can continue its important work on behalf of the American people."
Senate confirmation of Republicans Harry Johnson and Philip Miscimarra shouldn't be a problem, says former NLRB Chairman (2001-2002) attorney Peter Hurtgen, but it probably won't happen. Now retired and living in Laguna Niguel, Calif., Hurtgen served on the NLRB under President Clinton from 1997 to 2002. He says he knows both nominees personally.
"Harry Johnson and Phil Miscimarra are very fine lawyers, and they would be good NLRB members, because they're not iconoclastic ideologues. They would bring moderate, balanced analysis based on well-thought-out decisions, and they both would be principled board members," says Hurtgen, "but they won't get the chance to serve until the greater partisan debacle gets resolved."
On his own nomination, Phil Miscimarra says, via email: "I have dealt with the NLRB throughout my career, and it addresses extremely important workplace issues. It is a great honor to be nominated to the NLRB, and it would be a privilege to serve on the Board if I am confirmed. My nomination remains subject to Senate confirmation, and I do not have any other comment at this time."
The NLRB is supposed to be comprised of five members who each serve five-year terms. Members are nominated by the President, but confirmed by the Senate, and the political make-up of the board historically favors the incumbent president, 3 to 2. Decisions must be made by a quorum of three.
Hurtgen notes that this partisan imbalance has led to political maneuvering by Presidents in the past, but Obama has pushed it to a breaking point. "The gulf between the parties has grown larger, and the board decisions that have resulted have been so far to the left that this has opened the gulf more so to the point that it's broken. If Republicans stand strong, they won't support an Obama board chosen by a President who was placed there by organized labor. In my opinion, any board comprised of three Democrats as this group presents itself won't be confirmed," he says.
"This is a political and legal stalemate that will only be broken by a Supreme Court decision," says Rick Warren, a partner in the Atlanta office of Ford Harrison. "In part, this is a political conflict between the Republicans, the business community and President Obama over the direction of the NLRB and its decisions and actions. It's also a tug-of-war of the recess appointments clause in the Constitution. Presidents attempt to use the recess appointments clause when they cannot get their appointees approved. The proper demarcation of what is permitted under the recess appointments clause has never really been clear. Presidents from both parties have used that ambiguity when they could not get the nominee through the Senate."
Hurtgen notes that the Democrat-controlled Senate under President Bush was the first to block presidential recess appointments by going into "pro forma" sessions instead of recessing. "That's exactly what the Senate did this time," he points out, adding that Bush backed down, but Obama scoffed at the Senate's non-recess status. "He went ahead and made Block and Griffin members on the last day of the Senate term in 2011."
In January, the D.C. Circuit Court of Appeals ruled in Noel Canning v. NLRB that Obama's recess appointments to the NLRB were "constitutionally invalid." The administration has appealed to the Supreme Court, but the board has continued to conduct business as usual, despite Republicans' efforts to stop the board from issuing decisions until the legal status is resolved.
Mark Neuberger, of the Miami office of Foley & Lardner, says HR leaders should pay close attention to this situation. "The NLRB is like Law + Order plus the jury, police, prosecutor and judge," he says. "When they issue opinions, we as lawyers in management and labor look to those decisions to guide our clients' conduct. If the past years' decisions may be invalid, it puts the whole status of labor law in jeopardy.
"I think Obama is trying to put together a full package of Democrats and Republicans to say that this is a fair deal; the best you'll ever get. He reached out to find two really good, reputable management lawyers to make it hard for the Democrats to oppose their eligibility," he adds, noting that a decision from the Supreme Court is probably the only way to resolve the current situation.
"NLRB decisions will affect HR more than ever before due to the current Board's expansive interpretation of what constitutes protected concerted activity by unrepresented employees regarding social media, employment policies, and the like," according to Hal Coxson, Washington-based chair of Ogletree Deakins Government Relations Practice Group. He adds that confirming a five-member package is unlikely. "Miscimarra and Johnson are two of the finest labor lawyers I know. They are scholars of the law and would make very good Board Members. But, as part of a five-person package that includes the two unconstitutionally-named , non-recess "recess" appointees, I don't see the package being confirmed."
Coxson says that decisions made by the current Board should be appealed by employers to the D.C. Circuit. "Watch the action of the Supreme Court as to whether the Noel Canning decision from the D.C. Circuit is valid," he says. "It's advantageous to appeal adverse NLRB decisions to the D.C. Circuit because the court will hold all current and future cases in abeyance pending the Supreme Court's decision in Noel Canning.
"In future adverse NLRB decisions," he adds, "this also means management-side lawyers should probably not agree to settle as quickly as they might, because settlement of an NLRB case requires the lawyer to agree to default language that forfeits their client's right to contest future matters."
Hurtgen thinks that a balanced board of two republicans and two democrats is the only solution to a problem that's gotten out of control. "A four-member, 2-2 board could do 90 percent of the NLRB's business. This would keep the status quo and veering to the left or right would stop."
According to Hurtgen, "Employers argue with some truth that it's hard to know what's lawful and what isn't, but you need to pay close attention to the law as it exists, and don't go on the theory that you'll get a free pass. Respect the law as it's written, and do your best to comply with it."