Private: Why We Need the National Labor Relations Board

by Senator Tom Harkin (D-Iowa). Sen. Harkin is the Chairman of the Health, Education, Labor, and Pensions Committee.

This week, the Senate Health, Education, Labor, and Pensions (HELP) Committee, which I chair, held a hearing on the full slate of five nominees to the National Labor Relations Board (NLRB): Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III, and Philip Andrew Miscimarra. These are vitally important nominations because the enforcement of our labor laws is essential to the growth of a strong middle class and to the smooth functioning of businesses large and small across the country. Without Congressional action, the NLRB will go dark in August -- which could have a truly troubling impact on our economy.

Workers and employers alike rely on the fact that the Board will enforce our labor laws, and enforce contracts between labor and management.  For the thousands of American workers fired every year for trying to organize a union in their workplace, an NLRB out of commission means that those workers would have to wait years before they could get their job back or any back pay for lost wages. From the business perspective, the NLRB also ensures that unions do not step outside the law in their interactions with workers or employers. Perhaps that is why a Senior Counsel to the National Federal of Independent Businesses (NFIB) said that “to have the Board totally shut down would be a travesty.”

Despite this agreement on the importance of the Board’s operations, in recent years, Congressional Republicans have waged unprecedented attacks on the NLRB.  While it appears that their real goal might be to repeal the National Labor Relations Act altogether, because they know that an attempt to repeal the law directly would surely fail, they have worked instead to dismantle the Board by attempting to hold up nominees or strip its funding. In the last Congress, House Republicans launched a series of efforts to shutter the NLRB, including voting to defund the Board entirely, and proposing a budget to force the Board to furlough all of its employees for most of 2011. Republicans have also proposed bills to abolish the NLRB and bills to limit its ability to enforce decisions and promulgate regulations.

Of course, these efforts to undermine the Board are all part of a larger Republican assault on the unions and on collective bargaining in states like Ohio, Wisconsin, and Michigan.  These attacks don’t just hurt unions -- they undermine the very existence of the American middle class.

I was pleased when President Obama sent a bipartisan slate of nominees -- three Democrats and two Republicans -- to the HELP Committee last month. Throughout its history, the NLRB has operated in a bipartisan fashion to adjudicate disputes. Though I may not agree with all of the views of the Republican nominees, I recognize that they are highly qualified and ought to be confirmed, so that the Board can get back to work. In the recent past, my Republican colleagues here in the Senate have not afforded such respect to NLRB nominees and have refused to confirm the President’s nominees at every turn, regardless of their excellent qualifications.

In their latest effort, Senate Republicans are now insisting that recess-appointed NLRB members Richard Griffin and Sharon Block resign from the board, citing the recent D.C. Circuit Court decision in Noel Canning that -- wrongly, in the opinion of legal scholars at the American Constitution Society and many others -- invalidated their appointments. This Circuit Court decision was not only a radical departure from precedent, but it ignored or summarily dismissed the legal analysis from three other federal appellate courts. The D.C. Circuit also turned a blind eye to history, ignoring that Democratic and Republican Presidents alike have made liberal use of intrasession recess appointments for years.  I’ve urged the NLRB to continue to do its business until and unless the Supreme Court rules on this important question, and I will fight to get a full slate of nominees confirmed to the National Labor Relations Board so that the agency can turn its full attention to serving the public.

What is happening here is that Senate Republicans are attempting to trap the NLRB nominees in a political feedback loop. First, they oppose NLRB appointments, preventing the board from convening a quorum and forcing the President to make recess appointments; then, they challenge the recess appointments in the courts. Finally, they insist that the Board effectively shut down until these challenges make their way to the Supreme Court, leaving the NLRB unable to fulfill its critical mission -- potentially for years at a time. For Americans who believe Washington is broken, one could not dream up a more convincing case study -- sometimes the truth really is stranger than fiction.

Labor and Employment Law