Working People Deserve a Functioning NLRB

The AFL-CIO Executive Council today sent a clear-cut message to Senate Democrats: Empower the National Labor Relations Board or else.

"Now we demand that the president name all five people to fill those NLRB positions and that the Senate vote promptly,” said CWA President Larry Cohen, a member of the council. “We expect the Democrats to use every option, including the talking filibuster or rules changes to prevent the Republicans from blocking this. If they don't, they can expect us to go after them like we never have before -- in the nation's capital and in their districts -- wherever they go."

As it stands, the NLRB is toothless. On Jan. 25, a three-judge panel of Republican appointees to the US Court of Appeals for the District of Columbia Circuit declared President Barack Obama’s three recess appointments to the NLRB unconstitutional because the Senate wasn’t technically recessed, only away on winter break. In knocking down three of the board’s five members, the Noel Canning ruling completely vaporized the NLRB’s ability to enforce US labor law.

At its February meeting, the AFL-CIO Executive Council, representing 57 affiliate unions, called for mobilization and action:

The decision by the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning is unprecedented, and it is sweeping in its potential reach. By the court’s logic, more than 300 recess appointments made by Presidents Reagan, Clinton, Obama and both Presidents Bush were invalid—including 141 appointments made by President George W. Bush alone. It’s a shocking and far-reaching decision that dramatically and painfully illustrates the consequences of Senate Republicans exploiting Senate rules to prevent President Obama from getting all but two of his nominees confirmed to the NLRB and any of his nominees confirmed to the District of Columbia Circuit.

Noel Canning is one decision by one court—it is not the final word on the validity of President Obama’s recess appointments. The decision is at odds with the decisions of at least three other courts, and the government should quickly seek review, and reversal, of the decision by the U.S. Supreme Court. Each day that Noel Canning remains on the books means further chaos and disarray at the NLRB and difficulties in enforcing workers’ rights.

The NLRB remains open, and the recess appointees are trying to go about business as usual, notwithstanding demands by Republican senators that they resign, and the introduction of legislation to eliminate their pay if they do not. But the Noel Canning decision has seriously undermined enforcement of the law and made an already weak law even more lopsided against workers exercising their rights. As long as Noel Canning stands, any employer can delay liability for violating the NLRA by challenging the NLRB’s decision in the District of Columbia Circuit, because that court is deferring action on all NLRB cases pending Supreme Court review of the Noel Canning decision. As a practical matter, this means the NLRB will not be able to enforce the law effectively for workers unless and until the Supreme Court reverses Noel Canning, the District of Columbia Circuit unfreezes pending cases, and those cases are decided—probably well into 2015. In the meantime, employers escape liability for violating the law. And they are brazenly and outrageously trying to exploit and extend the logic of Noel Canning to challenge elections, injunctions and other actions by the NLRB, causing further chaos and uncertainty for workers.

This is an intolerable and unacceptable situation. Working people deserve a functioning NLRB that will enforce workers’ rights.

Echoing Cohen, the statement pressures lawmakers to take charge. “We will hold senators of both parties accountable if they stand in the way or fail to act,” the council wrote.

And it stresses that Senate Majority Leader Harry Reid must take responsibility and follow through with real, substantial Senate rules reforms, if it comes to that.

“If Senate Republicans exploit the Senate rules and try to filibuster the President’s nominees,” the council said, “Senator Reid should take all necessary steps to overcome the filibuster, and if not successful, lead an effort to change Senate rules so the President’s nominees cannot be blocked by the minority.”