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1933–1935: First collective bargaining organization 'National Labor Board'
The National Labor Board (NLB) established a system of 20
regional boards to handle the immense caseload. Each regional board had a
representative designated by local labor unions, local employers, and a
"public" representative. All were unpaid. The public representative
acted as the chair. The regional boards could hold hearings and propose
settlements to disputes. Initially, they lacked authority to order
representation elections, but this changed after Roosevelt issued
additional executive orders on February 1 and February 23, 1934.
The NLB, too, proved ineffective. Congress passed Public
Resolution No. 44 on June 19, 1934, which empowered the president to
appoint a new labor board with authority to issue subpoenas, hold
elections, and mediate labor disputes. On June 29, President Roosevelt abolished the NLB and in
Executive Order 6763 established a new, three-member National Labor Relations Board.
Lloyd K. Garrison was the first Chairman of the National Labor Relations Board (often referred to by scholars the "First NLRB" or "Old NLRB").
The "First NLRB" established organizational structures which continue
at the NLRB in the 21st century. This includes the regional structure of
the board; the use of
administrative law judges
and regional hearing officers to initially rule on cases; an appeal
process to the national board; and the use of expert staff, organized
into various divisions, at the national level. Formally, Garrison established the:
- Executive Office, which handled administrative activities of the
national and regionalsit boards, field staff, and Legal Division. It
was overseen by an Executive Secretary.
- Examining Division, national staff which conducted field
investigations and assisted the regional boards with adjudications,
hearings, and representative elections.
- Information Division, which provided the press and public with news.
- Legal Division, which assisted the Department of Justice in seeking compliance with board decisions in the courts, or in responding to suits brought about by board decisions.
- Research Division, which studied decisions of the regional boards so
that a comprehensive labor law might be developed, and studied the
economics of each case.
Within a year, however, most of the jurisdiction of the "First NLRB"
was stripped away. Its decisions in the automobile, newspaper, textile,
and steel industries proved so volatile that Roosevelt himself often
removed these cases from the board's jurisdiction. Several federal court
decisions further limited the board's power.
Senator Robert F. Wagner (
D –
NY)
subsequently pushed legislation through Congress to give a statutory
basis to federal labor policy that survived court scrutiny. On July 5,
1935, a new law—the
National Labor Relations Act (NLRA, also known as the Wagner Act)—superseded the NIRA and established a new, long-lasting federal labor policy. The NLRA designated the National Labor Relations Board as the implementing agency.
1935–1939: Constitutionality, communism, and organizational changes
- Administrative Division: Oversaw all administrative activities of national and regional boards and their finances; led by Secretary
- Economic Division: Analyzed economic evidence in cases; made
studies of economics of labor relations for use by board and courts;
supervised by Chief Industrial Economist; also known as the Technical
Service Division
- Legal Division: Handled NLRB either decisions appealed to
courts or cases in which NLRB sought enforcement of its decisions;
overseen by General Counsel (hired by NLRB board); comprised two
subdivisions:
- Litigation Section: Advised national and regional boards, prepared briefs, worked with Justice Department
- Review Section: Analyzed regional hearings and decisions; issued interpretations of law; prepared forms; drafted regulations
- Publications Division: Handled all press and public
inquiries; published decisions of national and regional boards and their
rules and regulations; overseen by Director of Publications
- Trial Examining Division: Held hearings before the national board; overseen by Chief Trial Examiner
Benedict Wolf served as first Secretary of the NLRB,
Charles H. Fahy the first General Counsel, and
David J. Saposs the first Chief Industrial Economist. Wolf resigned in mid-1937, and
Nathan Witt, an attorney in the Legal Division, was named Secretary in October.
The Economic Division was a critical one for the NLRB.
Cause-and-effect was one of the fundamental assumptions of the National
Labor Relations Act, and for the causes of labor unrest to be understood
economic analysis was needed.
From the start, the Economic Division undertook three important tasks:
1) Gather economic data in support of cases before the courts; 2)
Conduct general studies of labor relations to guide the board in
formulating decisions and policies; and 3) Research the history of labor
relations (the history of written agreements, whether certain issues
were historically part of collective bargaining, how unions functioned
internally, trends in employer activities, trends in collective
bargaining, whether certain employer actions led to labor disputes,
etc.) so that the board could educate itself, the courts, Congress, and
the public about labor relations.
The first function proved critical to the survival of the NLRB. It was
the Economic Division's data and analysis, more than then NLRB's legal
reasoning, which proved critical in persuading the Supreme Court to
sustain the Wagner Act in NLRB v. Jones & Laughlin Steel. The Court even cited several Economic Division studies in its decision. In the wake of Jones & Laughlin Steel,
many labor relations experts outside the agency concluded that economic
analysis was "an accepted fact" essential to the proper functioning of
the agency. The Economic Division did, too. It asked Madden to pair an economist with an attorney in every important case, and prepared outline of the economic data needed to support each case in case it went before the courts.
The NLRB's Economic Division proved critical in pushing for a
congressional investigation into employer anti-union activities, and
ensuring that investigation was a success. The Economic Division was
deeply aware of employer use of
labor spies, violence, and
company unions to thwart union organizing, and quietly pressed for a congressional investigation into these and other tactics. Senator
Robert M. La Follette, Jr. took up the suggestion, on June 6, 1936, the
Senate Committee on Education and Labor established a Subcommittee Investigating Violations of Free Speech and the Rights of Labor chaired by La Follette. Better known as the "
La Follette Committee",
the subcommittee held extensive hearings for five years and published
numerous reports. The committee uncovered extensive evidence of
millions of company dollars used to pay for spies and
fifth columnists
within unions, exposed the culpability of local law enforcement in acts
of violence and murder against union supporters (particularly in the
Harlan County War), revealed the wide extent of illegal
blacklisting of union members, and exposed the use of armed
strikebreakers and widespread stockpiling of tear gas, vomit gas, machine guns, mortars, and armor by corporations to use against
strikers. Some of the evidence the committee used was provided by the Economic Division, and the investigation proved critical for a time in defending the agency from business and congressional attack.
The biggest issue the NLRB faced was constitutional. The
Justice Department and NLRB legal staff wanted the
Supreme Court
to rule as quickly as possible on the constitutionality of the NLRA.
But the Board and Justice Department also realized that the Court's
Lochner era
legal philosophy made it unlikely for the Court to uphold the Act.
Subsequently, Madden strove to resolve minor cases before they could
become court challenges, and worked to delay appeals as long as possible
until the best possible case could be brought to the Court. This legal strategy paid off. The Supreme Court upheld the NLRA in
National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).
Afterward, Madden continued to strategically guide the NLRB's legal
efforts to strengthen the federal courts' view of the NLRA and the
board's actions.
Because of the efforts of Madden and NLRB General Counsel Charles H.
Fahy, the Supreme Court reviewed only 27 cases between August 1935 and
March 1941, even though the board had processed nearly 5,000 cases since
its inception. The Supreme Court enforced the NLRB's rulings in 19
cases without modifying them, enforced them with modification in six
more, and denied enforcement in two cases. Additionally, the Board won
all 30
injunction and all 16 representation cases before the lower courts, a rate of success unequalled by any other federal agency.
AFL opposition to the "Madden Board" grew after decisions in
Shipowners' Ass'n of the Pacific Coast, 7 NLRB 1002 (1938),
enf'd American Federation of Labor v. National Labor Relations Board, 308 U.S. 401 (1940) (awarding a longshoremen's unit to the CIO rather than the AFL), and
American Can Co., 13 NLRB 1252 (1939) (unit's history of collective bargaining outweighs desire of workers to form craft-only unit).
The AFL began pushing for an investigation into the NLRB, and
this investigation led to allegations of communist influence within the
agency. In June 1938, the
House Un-American Activities Committee (led by Chairman
Martin Dies, Jr. [D-
TX]) heard testimony from AFL leader
John P. Frey, who accused Madden of staffing the NLRB with
communists. The allegations were true, in at least one case:
Nathan Witt, the NLRB's executive secretary and the man to whom Madden had delegated most administrative functions, was a member of the
Communist Party of the United States. These allegations and discoveries significantly damaged the agency's support in Congress and with the public.
A second investigation into the
NLRB
led to organizational changes at the board. On July 20, 1939,
Republicans and conservative Democrats formed a coalition to push
through the
House of Representatives a resolution establishing a Special Committee to Investigate the National Labor Relations Board (the "
Smith Committee"), chaired by conservative, anti-labor Rep.
Howard W. Smith (D-
VA). On March 7, 1940, the Smith Committee proposed legislation to abolish the NLRB, reconstitute it, and radically amend the NLRA.
President Roosevelt opposed the bill, although he conceded that perhaps
the Board's membership should be expanded to five from three. The Smith bill won several early tests in the House, which also voted to substantially cut the NLRB's budget. Smith won a vote in the
House Rules Committee permitting him to bring his bill to the floor for a vote.
In an attempt to defuse the legislative crisis, Madden fired 53 staff
and forced another five to resign, and decentralized the NLRB's trial
process to give regional directors and field agents more authority. But the House still passed the Smith bill by a vote of 258 to 129 on June 7, 1940. To protect the NLRB, Roosevelt convinced Senator
Elbert D. Thomas, Chairman of the
Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.
The Smith Committee investigation had a lasting effect on labor law in the U.S., and was the basis for the
Taft-Hartley Act of 1947. Madden's term on the NLRB came to an end after just four years. On November 15, 1940, President Roosevelt nominated
Harry A. Millis to the NLRB and named him Chairman, and nominated Madden to a seat on the U.S. Court of Claims.
1940–1945: The Economics Division and World War II
Another
major structural change occurred at the same time that Madden left the
NLRB. The Smith committee's anti-communist drive also targeted David J.
Saposs, the NLRB Chief Industrial Economist. Saposs had been
surreptitiously assessed by members of the Communist Party USA for
membership, and rejected as a prospect. But Smith and others attacked Saposs as a communist, and Congress defunded his division and his job on October 11, 1940.
Although the Smith committee's investigation proved critical, the
disestablishment of the Economic Division was due to many reasons—both
internal and external to the NLRB, and only some of which involved
allegations of communist infiltration. As historian James A. Gross
observed:
The Division was eliminated for all kinds of reasons
which had nothing to do with the merits and importance of its work:
political pressures and maneuverings, jealousy and empire building
between and among lawyers and economists inside the Board, opposition to
leftist ideologies, a personal attack on the Chief Economist, David
Saposs, and a mighty hostility to the administrative process.
The loss of the Economic Division was a major blow to the NLRB. It
had a major tactical impact: Economic data helped the NLRB fulfill its
adjudicatorial and prosecutorial work in areas such as
unfair labor practices (ULPs), representation elections, and in determining remedial actions (such as reinstatement, back pay awards, and fines). Economic data also undermined employer resistance to the agency by linking that opposition to employer ULPs.
The loss also left the board dependent on the biased information
offered by the parties in dispute before it, leading to poor
decision-making and far less success in the courts.
It also had a major strategic impact: It left the board unable to
determine whether its administration of the law was effective or not. Nor could the board determine whether labor unrest was a serious threat to the economy or not. As
labor historian
Josiah Bartlett Lambert put it: "Without the Economic Research
Division, the NLRB could not undertake empirical studies to determine
the actual impact of
secondary boycotts,
jurisdictional strikes, national emergency strikes, and the like."
The Economic Division was critical to a long-range NLRB process to lead
to the long-term evolution of industrial labor relations in the U.S.,
but that goal had to be abandoned.
Most importantly, however, the evisceration of the Economic Division
struck at the fundamental purpose of federal labor law, which was to
allow experts to adjudicate labor disputes rather than use a legal
process. With this data and analysis, widespread skepticism about the
board's expertise quickly spread through Congress and the courts. It
also left the board largely unable to engage in rule-making, forcing it
to make labor law on an inefficient, time-consuming case-by-case basis. As of 1981, NLRB was still the only federal agency forbidden to seek economic information about the impact of its activities.
The second Chairman of the NLRB,
Harry A. Millis, led the board in a much more moderate direction.
Lacking an economic division to give it ammunition to fight with Millis
deliberately made the NLRB dependent on Congress and the executive
branch for its survival.
Millis made a large number of organizational changes. He stripped the
office of Secretary of its power, set up an Administrative Division to
supervise the 22 regional offices, initiated a study of the Board's
administrative procedures, and genuinely delegated power to the regional
offices.
He removed casehandling and regional office communication from the
jurisdiction of the Office of the Secretary and created a Field
Division.
He also adopted procedures requiring the board made its decisions based
solely on the trial examiner's report, authorized NLRB review attorneys
to review trial examiner report, required decisions to be drafted ahead
of time and distributed for review, authorized review attorneys to
revise drafts before a final decision was issued, required trial
examiners to emphasize findings of fact and to address points of law,
and began holding board meetings when there were differences of opinion
over decisions.
Millis eliminated the Review Division's decisive role in cases, which had been established under Madden and Witt.
Madden and Witt had adopted a highly centralized Board structure so
that (generally speaking) only the cases most favorable to the board
made it to the courts. The centralized structure meant that only the
strongest cases made it to national board, so that the board could apply
all its economic and legal powers to crafting the best decision
possible. This strategy enabled the NLRB to defend itself very well
before the Supreme Court. But Madden and Witt had held on to the
centralized strategy too long, and made political enemies in the
process. Millis substituted a decentralized process in which the board
was less a decision-maker and more a provider of services to the
regions. Many of the changes Millis instituted were designed to mimic requirements placed on other agencies by the
Administrative Procedure Act.
American entry into World War II on December 8, 1941,
significantly changed the NLRB. On January 12, 1942, President Roosevelt
created the
National War Labor Board
(NWLB), which displaced the NLRB as the main focus of federal labor
relations for the duration of the war. The NWLB was given the authority
to "finally determine" any labor dispute which threatened to interrupt
war production, and to stabilize union wages and benefits during the
war. Although Roosevelt instructed the NWLB not to intrude on
jurisdiction exercised by the NLRB, the War Labor Board refused to honor
this request. From 1942 to 1945, Millis tried to secure a
jurisdictional agreement with NWLB Chairman George W. Taylor. But these
discussions proved fruitless, and Millis broke them off in June 1945.
The NWLB also heavily raided the NLRB for staff, significantly hindering
NLRB operations.
Additional changes came with the passage of the
War Labor Disputes Act
(WLDA) on June 25, 1943. Enacted over Roosevelt's veto after 400,000
coal miners, their wages significantly lower due to high wartime
inflation, struck for a $2-a-day wage increase,
the legislation (in part) required the NLRB to issue a ballot outlining
all the collective bargaining proposals and counter-proposals, wait 30
days, and then hold a strike vote.
The War Labor Disputes Act proved very burdensome. The NLRB processed
2,000 WLDA cases from 1943 to the end of 1945, of which 500 were strike
votes. The act's strike vote procedures did little to stop strikes,
however, and Millis feared unions were using the referendums to whip up
pro-strike feelings among their members. Millis also believed the law's
strike vote process permitted more strikes to occur than the NLRB would
have allowed under its old procedures. There were so many strike vote
filings in the six months after the war ended that NLRB actually shut
down its long distance telephone lines, cancelled all out of town
travel, suspended all public hearings, and suspended all other business
to accommodate the workload. By early 1945, Millis was in ill health. He resigned from the NLRB on June 7, 1945, and
Paul M. Herzog was named his successor.
1947–1965: Taft-Hartley
A major turning point in the history of the NLRB came in 1947 with passage of the
Taft-Hartley Act.
Disruptions caused by strikes during World War II as well as the huge
wave of strikes that followed the end of the war fueled a growing
movement in 1946 and 1947 to amend the NLRA to correct what critics saw
as a pro-labor tilt in federal law. Drafted by the powerful Republican Senator
Robert A. Taft and the strongly anti-union Representative
Fred A. Hartley, Jr., the Taft-Hartley Act banned jurisdictional strikes,
wildcat strikes, political strikes,
secondary boycotts, secondary picketing, mass picketing, union campaign donations made from dues money, the
closed shop,
and unions of supervisors. The act also enumerated new employer rights,
defined union-committed ULPs, gave states the right to opt out of
federal labor law through
right-to-work laws,
required unions to give an 80-days' strike notice in all cases,
established procedures for the President to end a strike in a national
emergency, and required all union officials to sign an anti-Communist
oath. Organizationally, the act made the General Counsel a presidential
appointee, independent of the board itself, and gave the General Counsel
limited powers to seek injunctions without referring to the Justice
Department. It also banned the NLRB from engaging in any mediation or
conciliation, and formally enshrined in law the ban on hiring personnel
to do economic data collection or analysis.
In August 1947,
Robert N. Denham became the NRLB's
general counsel.
He held "conservative views" and wielded "considerable influence" on
labor-management relations and interpretations of the newly passed
Taft-Hartley Act. In 1950, US President
Harry S. Truman fired Denham (
New York Times: "left at the behest of the President"). While NLRB general counsel, Denham received considerable news coverage as a "quasi-Republican." Nominated by US President
Harry S. Truman,
Denham received unanimous approval by the US Senate Labor Committee. He
received "full and independent powers to investigate violations, file
complaints and prosecute offenders before the board." In August 1947, he supported an "Anti-Red Affidavit Rule" and so sided with US Senator
Robert A. Taft. In October 1947, the NRLB overruled him, which meant that top officers of the
American Federation of Labor (AFL) and
Congress of Industrial Organizations (CIO) would not have to sign an anti-Communist oath per the Taft-Hartley Act.
Herzog publicly admitted the need for some change in the NLRA,
but privately he opposed the proposed Taft-Hartley amendments. He felt
the communist oath provisions were unconstitutional, that the amendments
would turn the NLRA into a management weapon, that creation of an
independent General Counsel would weaken the NLRB, and that the law's
dismantling of the agency's economic analysis unit deprived the NLRB of
essential expertise. Nonetheless, Congress overrode Truman's veto of the Taft-Hartley Act on June 23, 1947, and the bill became law.
The Taft-Hartley Act fundamentally changed the nature of federal
labor law, but it also seriously hindered the NLRB's ability to enforce
the law. The loss of the mediation function left the NLRB unable to
become involved in labor disputes, a function it had engaged in since
its inception as the National Labor Board in 1933. This hindered the
agency's efforts to study, analyze, and create bulwarks against
bad-faith collective bargaining;
reduced its ability to formulate national labor policy in this area;
and left the agency making labor law on an ineffective, time-consuming
case-by-case basis.
The separation of the General Counsel from supervision by the national
board also had significant impact on the agency. This separation was
enacted against the advice of the Justice Department, contradicted the
policy Congress had enacted in the Administrative Procedure Act of 1946,
and ignored Millis' extensive internal reforms. The change left the
NLRB as the only federal agency unable to coordinate its decision-making
and legal activities, and the only agency exempted in this manner under
the Administrative Procedure Act. The separation of the General Counsel
was not discussed by the committee or by any witnesses during the
legislation's mark-up. Indeed, there was no basis for it at all in the
public record. It was, in the words of sociologist Robin Stryker, "little-noted" and "unprecedented".
The anti-communist oath provisions generated extensive public
debate, and generated disputes before the Supreme Court several times.
The Taft-Hartley oath first reached the court in
American Communications Ass'n v. Douds,
339 U.S. 382 (1950), in which the court held 5-to-1 that the oath did not violate the
First Amendment, was not an
ex post facto law or
bill of attainder in violation of
Article One, Section 10, and was not a "test oath" in violation of
Article Six. The issue again came before the court in
Garner v. Board of Public Works,
341 U.S. 716 (1951), in which the court unanimously held that a municipal
loyalty oath was not an
ex post facto law or bill of attainder. It came before the court yet a third time in
Wieman v. Updegraff,
344 U.S.
183 (1952). This time, the outcome was radically different. The Supreme
Court unanimously ruled that state loyalty oath legislation violated
the
due process clause of the
Fourteenth Amendment. In 1965, the Supreme Court held 5-to-4 that the anti-communist oath was a bill of attainder in
United States v. Brown,
381 U.S. 437 (1965). The Supreme Court essentially overturned
Douds, but did not formally do so.
1966–2007
The
board itself (as an adjudicating body distinct from the functions
separated as a result of Taft-Harley) has a fixed seating which is
assigned based on the names of 5 original members.
2007–2013: Lack of quorum
From
December 2007 until June 2010, the five-person Board had only two
members, creating a legal controversy. Three members' terms expired in
December 2007, leaving the NLRB with just two members—Chairman
Wilma B. Liebman and Member Peter Schaumber. President
George W. Bush refused to make some nominations to the Board and Senate
Democrats refused to confirm those which he did make.
On December 28, 2007, just before the Board lost its quorum, the
four members agreed to delegate their authority to a three-person panel
per the
National Labor Relations Act. Only Liebman and Schaumber remained on the Board, but the Board concluded that the two constituted a
quorum of the three-person panel and thus could make decisions on behalf of the Board.
Liebman and Schaumber informally agreed to decide only those cases
which were in their view noncontroversial and on which they could agree,
and issued almost 400 decisions between January 2008 and September
2009.
Structure
Plaque on the exterior of
1099 14th Street NW in Washington, D.C., the NLRB headquarters as of 2013.
Union members picketing NLRB rulings outside the agency's
Washington, D.C., headquarters in November 2007.
In 1947, the
Taft–Hartley Act
created a formal administrative distinction between the Board and the
General Counsel of the NLRB. In broad terms, the General Counsel is
responsible for investigating and prosecuting
unfair labor practice claims and for the general supervision of the NLRB field offices.
The General Counsel is appointed by the President to a four-year term
and independent from the Board; it has limited independence to argue for
a change in the law in presenting cases to the Board. The General
Counsel oversees four divisions: the Division of Operations Management,
the Division of Administration, the Division of Advice, and the Division
of Enforcement Litigation.
The Board, on the other hand, is the adjudicative body that
decides the unfair labor practice cases brought to it. Once the Board
has decided the issue, it is the General Counsel's responsibility to
uphold the Board's decision, even if it is contrary to the position it
advocated when presenting the case to the Board. The Board is also
responsible for the administration of the Act's provisions governing the
holding of elections and resolution of jurisdictional disputes.
The Board has more than thirty regional offices. The regional
offices conduct elections, investigate unfair labor practice charges,
and make the initial determination on those charges (whether to dismiss,
settle, or issue complaints). The Board has jurisdiction to hold
elections and prosecute violations of the Act in
Puerto Rico and
American Samoa.
Jurisdiction
Processing of charges
Charges
are filed by parties against unions or employers with the appropriate
regional office. The regional office will investigate the complaint. If a
violation is believed to exist, the region will take the case before an
Administrative Law Judge
who will conduct a hearing. The decision of the Administrative Law
Judge may be reviewed by the five member Board. Board decisions are
reviewable by
United States Courts of Appeals.
The Board's decisions are not self-executing: it must seek court
enforcement in order to force a recalcitrant party to comply with its
orders.
General Counsel
Lafe Solomon
was named Acting General Counsel on June 21, 2010. His nomination was
sent to the U.S. Senate on January 5, 2011. Solomon's authority came
into question on August 13, 2013 when Judge
Benjamin Settle for the
United States District Court for the Western District of Washington denied a petition for
injunctive relief, ruling that Solomon had not been properly appointed under the
Federal Vacancies Reform Act of 1998 (FVRA). Although other
district courts
had enforced Solomon's requests, Judge Settle's decision called into
question all of Solomon's activity since June 21, 2010, focusing on
subsections (a)(1) and (2) of the FVRA; some pundits claimed that
Solomon's appointment was allowed under subsection (a)(3). President Obama withdrew Solomon's nomination.
On July 31, 2013, President Obama nominated former NLRB nominee
Richard Griffin as General Counsel—"a kind of prosecutor at the board"
and "one of the most critical roles at the agency." Solomon's nomination was withdrawn. The Senate approved Griffin's nomination on October 29, 2013, by a vote of 55 to 44.
2007–2013: Unoccupied board seats
Becker's nomination appeared to fail on February 8, 2010, after Republican Senators (led by
John McCain) threatened to filibuster his nomination. President Obama said he would consider making
recess appointments to the NLRB due to the Senate's failure to move on any of the three nominations. On March 27, 2010, Obama recess appointed Becker and Pearce.
On June 22, 2010, a
voice vote
in the Senate confirmed Pearce to a full term, allowing him to serve
until August 27, 2013. The same day, the Senate confirmed Republican
nominee Brian Hayes of Massachusetts by voice vote. Hayes' term ended on
December 16, 2012. Becker's term, as a recess appointee, ended on December 31, 2011. Effective August 28, 2011, Pearce was named Chairman to replace Democrat Wilma Liebman, whose term had expired.
On January 4, 2012, Obama announced
recess appointments to three seats on the board: Sharon Block, Terence F. Flynn, and Richard Griffin. The appointments were criticized by Republicans, including the House Speaker
John Boehner,
as unconstitutional and "a brazen attempt to undercut the role of the
Senate to advise and consent the executive branch on appointments".
Although made as recess appointments, critics questioned their
legality, arguing that Congress had not officially been in recess as pro
forma sessions had been held. Former U.S. attorney general
Edwin Meese
stated that in his opinion, since the appointments were made when the
Senate was "demonstrably not in recess" they represented "a
constitutional abuse of a high order".
On January 12, 2012 the U.S. Justice Department released a memo stating
that appointments made during pro forma sessions are supported by the
Constitution and precedent.
On January 25, 2013, in
Noel Canning v. NLRB, a panel of
the U.S. Court of Appeals for the District of Columbia Circuit ruled
that President Obama's recess appointments were invalid as they were not
made during an intersession recess of the Senate, and the President
moved to fill them during the same recess. On May 16, 2013, in
National Labor Relations Board v. New Vista Nursing and Rehabilitation,
the U.S. Court of Appeals for the Third Circuit became the second
federal appellate court to rule that the recess appointments to the NLRB
were unconstitutional. In a split decision, it also found that the
March 27, 2010 recess appointment of Craig Becker was unconstitutional. On January 14, 2014, the U.S. Supreme Court heard the case in
National Labor Relations Board v. Noel Canning.
Between January 2008 and mid-July 2013 the agency never had all
five members, and not once did it operate with three confirmed members. On July 14, 2013, Senate Majority Leader
Harry Reid threatened to exercise the "
nuclear option" and allow a simple majority (rather than a
supermajority) of the Senate to end a
filibuster.
This threat to end the filibuster's privileged position in the Senate
was intended to end Republican filibustering of NLRB nominees.
On July 16, 2013, President Obama and Senate Republicans reached an
agreement to end the impasse over NLRB appointees. Obama withdrew the
pending nominations of Block and Griffin, and submit two new nominees:
Nancy Schiffer, associate general counsel at the AFL-CIO, and Kent
Hirozawa, chief counsel to NLRB Chairman Mark Gaston Pearce. Republicans
agreed not to oppose a fourth nominee, to be submitted in 2014.
On July 30, 2013, the Senate confirmed all five of Obama's nominees for the NLRB: Kent Hirozawa, Harry I. Johnson III,
Philip A. Miscimarra, Mark Gaston Pearce and Nancy Schiffer. Johnson and Miscimarra represented the Republican nominees for the board. Pearce was confirmed for a second five-year term.
Nancy Schiffer's term ended on December 15, 2014. She was succeeded by
Lauren McFerran on December 16, 2014. Harry I. Johnson III's term ended
on August 27, 2015.
2017 appointments
On January 25, 2017, President
Donald Trump appointed Philip Miscimarra the acting Chairman of the NLRB. Miscimarra's term expired on December 16, 2017.
Marvin Kaplan succeeded him as NLRB Chairman on December 21, 2017. Kaplan was replaced as Chairman in April 2018 by
John F. Ring, who currently holds that position.
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