Why the Noel Canning Decision May Already Be Moot

Blog Post by: Moshe Marvit, on May 14, 2013

The Century Foundation

In April, the Obama administration finally filed an appeal with the Supreme Court over the D.C. Circuit’s Noel Canning decision which invalidated Obama’s recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).

That’s the legal.

The political is that no matter how the court case is resolved the most recent era of the NLRB is likely over. But if history is any guide, then Democrats will continue to act as if the old rules still apply, while Republicans forge ahead with a new set of rules.

Most of the attention and analysis of the Noel Canning decision has focused on the question of recess appointments, while simply accepting as fact the premise of inherent controversy of appointments to these agencies.

While the CFPB, which is only a few years old and has never had a confirmed director, has been attacked from its inception, it is important to remember that appointments to the NLRB have not always been controversial affairs. The history of NLRB member appointments is instructive as we determine what comes next. And why what the Court does with the Noel Canning case may not matter when it comes to how the NLRB works.

The NLRB was conceived in 1935 as an agency that would be headed by career civil servants rather than the wildly unstable agency it has become. Law professor Joan Flynn has written about how the NLRB was consciously set up differently than its predecessor National Labor Board (NLB), which was stocked by equal numbers of industry and labor representatives. As opposed to the NLB, the NLRB was conceived of as a “strictly nonpartisan” body. For much of its history, the NLRB retained its original character in spite of Republican attempts to turn it into a partisan body.

Under President Roosevelt, who established the NLRB in 1935, and President Truman, appointments to the NLRB were almost all government employees, with the remainder being academics. In 1952, President Eisenhower broke with the norm and appointed a management attorney to chair the board, a management-side industrial relations director as a member, and a management attorney to the position of General Counsel. There was outcry in the Senate, with many arguing that Eisenhower was changing the nature of the NLRB and turning it into a partisan body.

Presidents Kennedy and Johnson returned the NLRB to its original form, appointing no management or labor representatives. Presidents Nixon and Ford followed Eisenhower’s lead and appointed several management representatives to the Board. It was President Reagan, in his multi-pronged attacks on labor, who permanently changed the nature of the NLRB and set its appointment process on an untenable course.

Reagan’s appointments went well beyond the mainstream management representatives of his predecessor Republican presidents. Political science professor Terry Moe has written that “Reagan imposed on the NLRB a brand of radical anti-unionism that business leaders did not demand and, in fact, had long resisted.” First, Reagan appointed Robert Hunter, a policy strategist from the Heritage Foundation that specialized in anti-labor policy. Next, he appointed John Van de Water, a non-lawyer union buster for the chair of the Board. In Senate hearings, AFL-CIO president Tom Donahue read from an article that Van de Water had published a decade earlier where he bragged that he had personally been involved in 130 employer campaigns to block unions, and he had been successful in 125 of them. Democrats and labor attacked the Van de Water nomination, and after being unable to gain Senate confirmation, Van de Water served shortly on a recess appointment.

Reagan then appointed Donald Dotson, a management-side attorney who not only displayed radical anti-union views, but also had an approach that historian James Gross has said “appealed to the Reagan White House seen as ‘interested in destroying established traditions, not in following them.’” Dotson was despised at the Labor Board for his scorched earth policies, with many unwilling to even lunch with him, and his successor reportedly mounting a photo of Dotson on Dotson’s former toilet in the Chairman’s bathroom. Dotson publicly went to war with the moderate Republican General Counsel, Rosemary Collyer, and in the process diminished some of the authority of the traditionally independent General Counsel position. Following Reagan’s early appointments to the NLRB, labor had enough and AFL-CIO president Lane Kirkland announced that labor would now seek labor representatives to the Board, and that “all the old rules were off.”

Almost 60 years after the Board’s creation, President Clinton, in 1994, nominated Margaret Browning as the first labor-side attorney to the NLRB. Clinton also ushered in the era of “packaged” nominations, where individual appointments would not be considered individually, but rather as part of a package deal. Under this compromise, a Democratic president would pick 3 members from labor, and Republicans would recommend 2 members from management. Under a Republican president, it would be 3 from management and 2 from labor. Professor Flynn marks this deal as the completion of the full circle to the partisan Board that was consciously avoided in creating the NLRB in 1935.

The packaged deal model held through the Clinton and Bush presidencies. However, under President Obama, the Republican minority in the Senate decided it would simply refuse to confirm Obama’s packaged group of NLRB appointments. After having his appointments languish in the Senate for much of 2011, Obama filled the vacancies with recess appointments in January 2012. Now, the Noel Canning decision has placed the validity of these recess appointments in jeopardy. The GOP-controlled House seized on this decision and advanced HR 1120—the cumbersomely titled “Preventing Greater Uncertainty in Labor-Management Relations Act”—which would freeze all workings of the Board until there is a quorum of 3 members confirmed by the Senate.

Obama has recently offered a new package of nominations to the Senate, with 2 Republicans and 1 Democrat, but it is unlikely to be accepted.  If the Supreme Court strikes down Obama’s recess appointments, then Republicans will likely demand a new package deal of majority conservative Board members.  Republicans would hold all the power in such a bargaining stance because many would be equally satisfied with either a pro-management Board or a non-functioning Board. If the Supreme Court affirms Obama’s recess appointments, Republican senators could still block confirmations, and the authority of a Board permanently comprised of short-lived recess appointees would be diminished.

NLRB Nominations May Be Blocked By GOP, Rendering Labor Board Inoperable

By David Jamieson

Huffington Post

WASHINGTON -- With the Senate about to consider President Obama's nominees to the National Labor Relations Board, Democrats and labor groups are growing concerned that Republicans will block the administration's left-leaning nominations, rendering the board inoperable once a current member's term expires in August.

The five-member board, which is tasked with enforcing labor law and settling disputes between companies and workers, must have a quorum of at least three members in order to issue decisions. It currently has the bare minimum -- and only because of the president's recess appointments to the board, which have been jeopardized by an unfavorable appeals court decision, known as Noel Canning, that deemed them unconstitutional in January.

With Obama's nominees now requiring confirmation, union leaders worry that some Republicans will see their wish of a non-functioning board come true, leaving labor disputes tied up indefinitely.

"This is not what democracy looks like," said Larry Cohen, president of the Communications Workers of America union. "These cases are not about unions. They're about working people. ... The bottom line is that for 80 million private-sector workers, this is the only agency that protects their rights."

The Senate Committee on Health, Education, Labor and Pensions is set to hold a hearing on the nominees on Thursday. The administration has sent the Senate a full bipartisan slate of nominees for review, including two Democrats currently serving under recess appointments, Sharon Block and Richard Griffin. Their seats are now unstable due to the GOP-backed Noel Canning lawsuit. (Two of Obama's five total nominees are Republicans, and three are Democrats.)

Republicans have assailed the Obama-era labor board for its rules and decisions seen as favorable to unions, with Sen. Lindsey Graham (R-S.C.) going so far to say that an "inoperable" board would be "progress." Graham and others were infuriated by a complaint issued on behalf of unionized workers against the Boeing Company in 2011, although that case was later resolved. They've also bristled at rules proposed by the board, like one that would require corporations to hang posters informing workers of their rights under the law.

Republicans have seized on the Noel Canning decision to argue that Obama's recess appointments, and, by extension, their rules and decisions, have been illegitimate all along. GOP senators have demanded that Block and Griffin step down in the wake of the Noel Canning decision, and that their appointments -- and any future nominations -- should go through the traditional confirmation process. Block and Griffin haven't resigned their posts, and the Noel Canning case is expected to be taken up by the Supreme Court.

The situation has created an inconvenient catch-22 for the White House and the labor board: The administration's recess appointments may well be tossed out, and yet Republicans appear unlikely to approve the clean nominations that they've publicly called for.

"A lot of Republicans would assume the board goes dark in August," said one congressional staffer, who asked not to be named in order to speak freely.

If Republicans do choose to block the nominees, it isn't clear what their public argument will be, given that they've asked the White House to send them nominees for confirmation in order to resolve the recess appointment debacle and keep the board running. But congressional Democrats suspect some Republicans may claim Block and Griffin are unfit for their seats on the board because they didn't step down as Republicans demanded after the Noel Canning decision.

"As the Senate considers the nominees, the two individuals who were unconstitutionally appointed [Block and Griffin] should leave, because the decisions in which they continue to participate are invalid," Sen. Lamar Alexander (R-Tenn.), ranking member of the Senate HELP Committee, said last month.

Cohen's Communications Workers of America union, for one, has deemed the scenario a "shell game" run by Republicans. "They stand for nothing except no board," Cohen argued.

On a call with reporters Tuesday, Richard Trumka, president of the AFL-CIO labor federation, said that "having our labor laws in disarray is causing real consequences in real people's lives."

"It's up to the Senate to do the right thing, to act quickly and confirm the president's full slate for the NLRB," Trumka said. "The less the board works, the more America's economy falls out of whack, as we see today with record inequality and a shrinking middle class."

As HuffPost reported in March, the obstruction of the labor board has indeed hurt plenty of people outside the Beltway, with scores of cases hung up in court ultimately because of the president's inability to make clean board appointments. One group of miners in West Virginia who were illegally discriminated against for being union members have waited nearly a decade for their case to be resolved, with two favorable decisions either thrown out or stayed because of procedural problems at the board.

Labor leaders have held up the near-paralysis of the labor board as just one of many reasons to change Senate rules, which currently allow the minority party to block any legislation, nominees or appointments they choose. Senate Majority Leader Harry Reid (D-Nev.) and other Democrats have declined opportunities to implement meaningful reforms, like requiring that senators who wish to filibuster actually speak and hold the floor.

"If people want to filibuster," Cohen said, "they should have to talk."