The Obama Board’s Legacy – Part 1 of 2

Andrew Strom

Andrew Strom has been a union lawyer for more than 25 years. He is an Associate General Counsel of Service Employees International Union, Local 32BJ in New York, NY. He is the author of Caught in a Vicious Cycle: A Weak Labor Movement Emboldens the Ruling Class, 16 U.St. Thomas L.J. 19 (2019); Boeing and the NLRB: A Sixty-Four Year-old Time Bomb Explodes, 68 National Lawyers Guild Review 109 (2011); and Rethinking the NLRB’s Approach to Union Recognition Agreements, 15 Berkeley J. Emp. &; Lab. L. 50 (1994), and has written for Dissent and Dollars and Sense. He also taught advanced legal writing at Fordham Law School. He received his J.D. magna cum laude from Harvard Law School. The views he expresses on this blog are his personal views, and should not be attributed to SEIU Local 32BJ.

This post is the first in a two-part series.

When Kent Hirozawa’s term ended last month, the NLRB was reduced to three members – two Democrats and one Republican.  By tradition, it takes three Board Members to reverse precedent, and since no proposed rules are pending, it’s fair to say that President Obama’s NLRB will not be breaking any new ground for the duration of his term.  As a result, this seems like a good time to look back on the Obama Board.  During President Obama’s two terms, the NLRB has been as noteworthy for the partisan wrangling it has generated in Congress as for substantive labor law.  The first part of this review will look at how Republican hardball tactics led to three Supreme Court cases and a change in the filibuster rules and the next installment will focus on some of the decisional highlights.

One of the most notable aspects of President Obama’s NLRB is the difficulty the President has had filling the seats of the five Board Members.  As a result, at the end of President Obama’s eight years in office, there will have been only 41 months where the Democrats had a three-person majority on the Board.  When President Obama came into office there were three vacant seats.  In April 2009, he announced his intent to nominate Craig Becker and Mark Pearce and he waited for Republicans in Congress to recommend a Republican to fill the third empty seat.  Finally, on July 9, 2009, President Obama formally sent three nominations to the Senate.  The Republican Senators on the Health, Education, Labor & Pension (HELP) committee submitted 280 questions for Becker to answer in writing.  Then Senator McCain (who you may remember lost to President Obama) insisted on holding the first hearing on an NLRB nominee since 1994.  Even after the hearing, the Republicans still would not allow an up or down vote on Becker’s nomination.  Instead, the Democrats had to file for cloture and that vote failed when 52 Senators voted for cloture and 33 voted against.  These Republican obstructionist tactics ultimately led the Senate Democrats to reform the filibuster rules so that (except for the Supreme Court) it no longer takes 60 votes to confirm a Presidential nominee.

While the Republicans dragged their heels on filling the vacant seats on the Board, the two remaining Board Members, Wilma Liebman and Peter Schaumber did their best to decide the cases where they were able to reach a consensus.  But, in June 2010, in New Process Steel, L.P. v. NLRB, the Supreme Court held that they lacked authority to issue any orders, forcing the NLRB to revisit the 500 cases that they had decided.

President Obama did eventually place Becker on the Board as a recess appointment, but Becker did not take office until April 2010 and his appointment only lasted until January 3, 2012.  Since the Republicans were still threatening to filibuster President Obama’s nominees, the President made three additional recess appointments on January 4, 2012.  But, in NLRB v. Noel Canning, the Supreme Court held that the appointments were invalid because the Senate was holding a series of pro forma sessions every three days when President Obama made his recess appointments.  As a result of the Supreme Court’s decision, the Board had to reconsider over 100 cases that were decided by the recess appointees.  Needless to say, this delayed decisions in other pending cases.

Not only did the Republican Senators block President Obama’s appointments of Board Members, but they also blocked his initial choice to serve as NLRB General Counsel.  In June 2010, President Obama asked an NLRB career employee, Lafe Solomon, to serve as Acting General Counsel, and then in January 2011 the President sent his nomination to the Senate.  The Senate refused to act on Solomon’s nomination, largely because Solomon had authorized a complaint against Boeing when Boeing transferred a 787 production line from its unionized Washington State facilities to a non-union site in South Carolina.  Solomon’s tenure as General Counsel led to the third Supreme Court case involving the Board’s authority.  This case, NLRB v. SW General, Inc., which will be argued this fall, involves construction of the Federal Vacancies Reform Act of 1998.  Following the lead of Presidents Clinton and George W. Bush, President Obama construed the Vacancies Act to allow Solomon to serve as Acting General Counsel while his nomination was pending, but the D.C. Circuit held that Solomon lacked authority to continue serving as Acting General Counsel while his nomination was pending.

It’s truly remarkable that President Obama’s efforts to make appointments to this small, relatively powerless federal agency have led to three Supreme Court cases.  But, this reflects the outsized role that hostility toward the labor movement plays within the Republican Party.  This antipathy is evident in a press release issued last month by the Chairman of the House Education and the Workforce Committee that asserted “harassing and threatening the employer with frivolous charges … has long been the standard operating procedure for unions.”  Back in the beginning of President Obama’s first term, Senator Mike Enzi’s spokesperson stated that Senator Enzi, then the ranking Republican on the HELP committee, “believes that the President is due some deference when it comes to choosing nominees – that’s one of the consequences of the last election.”  But, when the Democrats lost their 60th vote in the Senate, Senator Enzi apparently changed his mind, and he supported the Republican filibuster of Craig Becker’s nomination.  As we’ve seen with Supreme Court nominee Merrick Garland, this is now the new normal.  The next President can no longer assume that qualified nominees will gain Senate approval.  Instead, it’s time to start gearing up for a fight to ensure that the Board can operate at full capacity throughout the next Administration.

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