04/12/2013 05:46 pm ET Updated Jun 12, 2013

No NLRB, No Voice

Today Congress essentially told working Americans to drop dead. House Republicans pushed through a dangerous bill that would paralyze the National Labor Relations Board, blocking the only path that workers have to workplace justice.  

H.R. 1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act,” is designed to advance a recent U.S. Court of Appeals for the District of Columbia Circuit decision, known as Noel Canning v. NLRB, challenging the constitutionality of President Barack Obama’s recess appointments to the board.

Under the decision, the NLRB only has one Senate-confirmed member – Chairman Mark Pearce, a Democrat whose term expires this August.

Now H.R. 1120 seeks to freeze all activities of the NLRB that requires a full quorum, or three members. It would also bar the NLRB from enforcing any decisions it has made since Jan. 4, 2012, when Obama made those disputed recess appointments.

How did we get here? The blame mainly falls on the broken Senate rules.

When Obama took office, the NLRB only had two members. In April 2009, Obama nominated three people to serve on the NLRB – Pearce, Craig Becker (D) and Brian Hayes (R). Yet Senate Republicans’ silent filibusters were effective in preventing a Senate vote on these nominees.

In March 2010, Obama recess appointed Becker and Pearce to the board. In June, the Senate confirmed Pearce and Hayes, but continued to block Becker.

When Becker’s recess appointment expired on Jan. 3, 2012, the NLRB didn’t have a quorum to make decisions. Confronted with Senate Republicans intent on undermining the NLRB’s authority, Obama made three recess appointments – Sharon Block (D), Richard Griffin (D) and Terence Flynn (R) – to guarantee a fully functioning board.  These members joined Pearce and Hayes, who left the board in December 2012. (Flynn resigned after an ethics scandal in March 2012.)

Senate Republicans argued the Senate had not formally recessed, but stayed in a “pro forma” session even though no business took place. Later, the Court of Appeals’ three-judge panel – all appointed by Republicans – made their Noel Canning ruling.

But Obama’s actions weren’t unusual. In fact, every president has made similar recess appointments. More than 300 such appointments were made by Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush and Obama.

The president didn’t have to resort to such measures, if only the Senate had reformed its outdated rules. The ability of Senators to endlessly hold up presidential nominations was a big reason why Fix the Senate Now coalition pushed to overhaul the rules earlier this year. Unfortunately, those reforms didn’t happen. As a result, even the Court of Appeals that decided Noel Canning is currently missing three justices, thanks to the broken Senate rules and the determination of Republican Senators to block nearly every judicial nomination made by Obama.

Republicans created this quagmire. And now those lawmakers, beholden to corporate interests, seek to further gut U.S. labor law.

At last count, 87 companies are using Noel Canning to challenge decisions issued by the NLRB and its regional offices. These include McDonalds and Starbucks, as well as Communications Workers of America (CWA) employers like Cablevision and West Penn Printing. They’re attempting to overturn or block union elections, undo penalties awarded to fired workers and halt subpoenas.

Workers who have been vindicated by the board, following years of struggle against employers with deep pockets and expensive legal teams, are, at best, in limbo and, at worst, likely to lose everything they rightfully deserve.

For example, in 2008, a NLRB administrative law judge found that CNN created a phony reorganization explicitly to get rid of technicians because they had a union, National Association of Broadcast Employees and Technicians-CWA. The judge ordered CNN to reinstate 110 workers, restore the economic losses of all 250 workers and recognize and bargain with NABET-CWA. Yet those workers still don't have their jobs, their back pay or their union.

The NLRB will ask the Supreme Court to take up Noel Canning by April 25. If the decision stands, some 600 NLRB decisions could be thrown out.

But H.R. 1120 has jumped the gun. Instead of waiting for the Supreme Court to rule on the matter, it improperly involves Congress in the judicial review of the president’s recess appointment powers.

Meanwhile, White House appointments are certain to be blocked by the same obstructionist Republican senators who are determined to keep the NLRB from operating.

This is not what democracy looks like. This calculated weakening of the NLRB potentially harms millions of workers, both union-represented and non-union.

Today the NLRB has no teeth, but if H.R. 1120 has its way, tomorrow it might not survive. A vote for H.R. 1120 is a vote to send this country to a pre-1935 era, before the National Labor Relations Act. It was a time when employers could punish, spy on and blacklist union members. It was a time when employers could legally bribe workers with rewards or promises during union elections.

To protect working Americans, the Senate majority must force confirmation of the White House's package of five NLRB members and general counsel and, if necessary, changing the Senate rules to do so.  Otherwise, the United States becomes the only global democracy without any meaningful labor law.

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