Politics and the Effect on the National Labor Relations Board's Adjudicative and Rulemaking Processes

• Citation: Vol. 64 No. 0
• Publication year: 2015

Politics and the Effect on the National Labor Relations Board's Adjudicative and Rulemaking Processes

William B. Gould IV

POLITICS AND THE EFFECT ON THE NATIONAL LABOR RELATIONS BOARD'S ADJUDICATIVE AND RULEMAKING PROCESSES

William B. Gould IV^*

ABSTRACT

The National Labor Relations Act has never explicitly required political balance in the National Labor Relations Board's (NLRB or Board) appointment process. But the Eisenhower administration demonstrated that policy shifts could be initiated through changes in NLRB composition. The Kennedy Board shifted gears again, prompting critics to say that the Board was on a "seesaw." More pronounced polarization began to emerge in the 1980s as political party divisiveness and union decline created more adversarial relationships.

In the 1990s, divided government produced a "batching" of appointees (in contrast to annual Senate confirmation votes on each appointment as their term expired), horse trading of "interchangeable elites engaged in an insider's game" as Professor Calvin McKenzie said. Ultimately, the consequences of impasse through this process twice resulted in Supreme Court decisions interpreting the Act and the Constitution so as to alter the relationship between the President and the Senate. But the Senate, under Senator Reid, was to trump the practical effect of these holdings by eliminating the filibuster, which frequently stalled or stopped NLRB appointments. Paradoxically, however, through both oversight hearings and the Congressional Review Act of 1996, legislative interference with the work of the NLRB has never been more extensive.

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INTRODUCTION ............................................................................................ 1503

I. THE EISENHOWER ADMINISTRATION ................................................ 1508
II. THE KENNEDY ADMINISTRATION ..................................................... 1509
III. THE NIXON, FORD, AND CARTER YEARS .......................................... 1512
IV. THE REAGAN ERA DEALS FROM A NEW DECK ................................. 1513
V. THE CLINTON BOARD ....................................................................... 1515
VI. THE SECOND BUSH BOARD .............................................................. 1519
VII. ENTER THE OBAMA BOARD: MORE CONFLICT BETWEEN CONGRESS AND THE BOARD ............................................................. 1520
VIII. THE CHANGE IN THE APPOINTMENTS PROCESS ................................ 1522

CONCLUSION ................................................................................................ 1525

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INTRODUCTION

This past year, the Supreme Court held that President Obama's appointments to the National Labor Relations Board (NLRB) were unconstitutional when made under the Recess Clause of the Constitution.¹ The Court held that the Senate's three-day recess in question was "too short a time to bring a recess within the scope of the Clause."² A 5-4 majority of the Court³ held that, while recess appointments can be made in both intersession and intrasession recesses of the Congress, historical practice dictated that the duration must be more substantial than what was involved in President Obama's appointments.⁴ The decision mirrored not simply increased political polarization in Washington, particularly during the last few decades,⁵ but also an impasse on labor policy, the culmination of which was a successful constitutional challenge to the President.

Only Senator Harry Reid's leadership initiative in producing the near total repeal of the Senate filibuster as it relates to appointments,⁶ which had stalled and stopped NLRB appointments, minimized its impact. Thus, notwithstanding the 2014 constitutional diminution of the President's authority to shape the Board through recess appointments, where the advice and consent of the Senate could not be obtained, the new Senate Rules adopted in 2013 appear to have increasingly shifted congressional attention away from the appointment process toward NLRB interpretation and administration of the law itself.

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"The time of life is short" states William Shakespeare.⁷ Eighty years, though constituting a generous lifespan for most individuals on the planet Earth at this particular time, pails in significance compared with, for instance, the 800 years that have passed since the Magna Carta was first propounded.⁸ Yet eighty is considerable, doubling the existence of the California Agricultural Labor Relations Act, which, in major respects, is predicated upon the National Labor Relations Act (NLRA or Act).⁹ And, the NLRA contains a framework that, whatever its considerable imperfections,¹⁰ has proved more enduring than any of the major industrialized competitors such as Great Britain, France, Germany, Italy, and Japan.

This eightieth anniversary of the passage of the National Labor Relations Act of 1935 is more politically challenging than the previous NLRA anniversaries of say, for instance, middle age of forty, fifty, or even sixty that were celebrated earlier.¹¹ The age of eighty is traditionally associated with creakiness, some measure of lethargy, and reflective anticipation of ones reckoning or legacy, but in order for this law to withstand the political environment that has truly surrounded it from the beginning of the Act in the late 1930s,¹² the age of eighty will have to become the new fifty. The pounding

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and scrutiny visited upon the Board and the Act during the past two decades in particular are proof positive of that necessity.

The idea of the NLRA and the NLRB was born out of judicial repression, a series of decisions employing a variety of legal techniques against trade unions.¹³ It was thought that judicial predilections about economics and politics were responsible for the continued constitutional invalidation of federal and state statues affecting the labor market,¹⁴ until a landmark holding produced a "switch in time that saved nine" and moved the United States away from these approaches.¹⁵

All of this heralded a commitment to a better rule of law, an extension or modification of the philosophy contained in the Norris La Guardia Act of 1932 that promoted both freedom of association and the collective bargaining process, the means constituting a hands off, or laissez-faire or collective laissez-faire,¹⁶ approach to labor disputes, through which the judiciary were now kept out almost altogether.¹⁷ The Act and its creation of the Board translated into interventionism in promoting the right to organize,¹⁸ though not necessarily of collective bargaining itself—a framework designed to be an effective substitute for law,¹⁹ through a mechanism designed as an effective substitute for courts of general jurisdiction utilizing a new specialized expert

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tribunal.²⁰ Inherent in this approach was the idea of independence propounded in the Supreme Court's ruling in Humphrey's Executor v. United States, where the Court held that the President had no authority to remove appointees who had fixed terms prior to the expiration of their terms and were therefore regarded as independent, impartial, and free from the political process.²¹ This prompted the writers of the senate Labor Committee's report on NLRB legislation to remove the language of the statute referring to the Board as an "independent agency in the executive department."²²

Yet, from the beginning it could not be as simple as that. The NLRB, like the other Roosevelt alphabet agencies, was a quasi-judicial agency providing for Board Members (or in the case of the other agencies, commissioners). The concept of the General Counsel as an independent prosecutor to bring cases before the policymaking Board was to come later much through the 1947 Taft-Hartley Act.²³

The Board members were given limited and staggered terms of appointment, as opposed to the life tenure possessed by the judiciary. Philosophically embedded in this idea was the ability of the President, with the advice and consent of the senate, to influence decisions of the Board through the appointment process, an objective that can also be accomplished through judicial appointments, especially at the supreme Court, which is the ultimate arbiter. But the big practical difference between the two different appointment processes is that each new President may produce a relatively expeditious change through administrative appointments—a difference which has led to the characterization of the Board as on a "seesaw."²⁴

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As I develop further below, the NLRB's appointment process is a not an inconsiderable feature of the changes that have produced substantially more intersection (and frequently tension) between the political process and the role of the Board. In the early years of the NLRA,²⁵ little attention was given to the shifts in balance between labor and management representatives because, except for the appointment of one management labor lawyer, individuals did not appear to be chosen as representatives of labor and management.²⁶ In addition, labor and management did not receive any kind of formal, let alone statutory, representation on the Board.²⁷ Notwithstanding the emergence of the so-called "do nothing" 80th Congress that enacted the 1947 Taft-Hartley amendments over President Truman's veto, for the most part, Roosevelt-Truman hegemony translated into a variety of appointments—but none overtly associated with political affiliation as in recent years. For example, FDR's first two Chairmen were academics,²⁸ but this was a precedent not returned to until my appointment by President Clinton in 1993—and not renewed since then.

Since the beginning, the Act has never required any kind of balance between Democrats and Republicans—a statutory absence that contrasts with other regulatory legislation. However, for some period of time, balance has been dictated by tradition. Professor James Gross has written that the "tradition did begin...