Legislative Update: NLRB: It’s Broke and You Can’t Fix It!

Fast, Furious, Ineffective

Dysfunctional continues to be the watchword regarding news related to the National Labor Relations Board.   The activity related to fixing the operational problems is moving at a fast and furious, but mostly ineffectual pace.  Here’s a news summary with some relevant links for you to check out.

New NLRB Nominations

President Obama is attempting to return to the NLRB to functional status by sending a slate of five names, which would constitute a full Board.  It is unlikely that the Senate will conform this slate, given the current political situation and following the Noel Canning decision.

The nominees include two Republicans, Harry Johnson and Philip Miscimarra. Obama also renominated Democrat Mark Gaston Pearce, who is currently serving on the board.  Previously, Obama renominated Sharon Block and Richard Griffin  to the five-member board.   This move is expected to place pressure on Republicans, and help the President justify his previous recess appointments which had been ruled unconstitutional.  That decision is currently being appealed by the NLRB.

Houses passes the Preventing Greater Uncertainty in Labor-Management Relations Act

As I reported on the Human Race Horses last week, SHRM recently anounced that the U.S. House of Representatives had passed H.R. 1120, Preventing Greater Uncertainty in Labor-Management Relations Act by a 219-209 vote. The bill would simply prohibit the National Labor Relations Board (NLRB) from taking any action that requires a quorum of the members of the Board until either a quorum of members has been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the Board made in January 2012, or the 113th Congress adjourns at the end of 2013.

 As you may know, in Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held on Jan. 25 that President Obama’s three January 2012 “recess appointments” to the NLRB were unconstitutional because they were made while the Senate was not in recess. Despite the court ruling, the NLRB continues to issue orders and decisions and may issue regulations. There is now a substantial question whether the NLRB’s recent and future actions have the force of law, and this creates needless uncertainty for employers and employees. SHRM supports balanced labor-management relations, and therefore SHRM supported H.R. 1120 because it would provide short-term clarity for all parties that the federal court’s decision in Noel Canning should stand until the Senate or Supreme Court acts.

 In other words, the NLRB is still broke and it doesn’t look like they are going to get it fixed anytime soon.

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Michael Vandervort

Mike Vandervort is Human resources strategist. HR consultant, writer and speaker. His specialties include Social Media, Employee Relations, HR, & Labor Relations. Connect with Michael.

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