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|Formed||July 5, 1935|
|Jurisdiction||Federal government of the United States|
|Agency executives||Mark Gaston Pearce, Chairman|
Kent Hirozawa, Member
Harry Johnson III, Member
Philip Miscimarra, Member
Nancy Schiffer, Member
Richard Griffin, General Counsel
|Formed||July 5, 1935|
|Jurisdiction||Federal government of the United States|
|Agency executives||Mark Gaston Pearce, Chairman|
Kent Hirozawa, Member
Harry Johnson III, Member
Philip Miscimarra, Member
Nancy Schiffer, Member
Richard Griffin, General Counsel
The National Labor Relations Board (NLRB) is an independent agency of the United States government charged with conducting elections for labor union representation and with investigating and remedying unfair labor practices. Unfair labor practices may involve union-related situations or instances of protected concerted activity. The NLRB is governed by a five-person board and a General Counsel, all of whom are appointed by the President with the consent of the Senate. Board members are appointed to five-year terms and the General Counsel is appointed to a four-year term. The General Counsel acts as a prosecutor and the Board acts as an appellate judicial body from decisions of administrative law judges.
As of 2013, the NLRB is headquartered at 1099 14th Street NW, Washington, D.C., with over 30 regional, sub-regional, and residential offices throughout the U.S.
The history of the NLRB can be traced to enactment of the National Industrial Recovery Act in 1933. Section 7(a) of the act protected collective bargaining rights for unions, but implementation proved immensely problematic as a massive wave of union organizing punctuated by employer and union violence, general strikes, and recognition strikes occurred. The National Industrial Recovery Act was administered by the National Recovery Administration (NRA). At the outset, NRA Administrator Hugh S. Johnson naïvely believed that Section 7(a) would be self-enforcing, but the tremendous labor unrest proved him wrong. On August 5, 1933, President Franklin D. Roosevelt announced the establishment of the National Labor Board under the auspices of the NRA to implement the collective bargaining provisions of Section 7(a).
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 chair of the National Labor Relations Board (often referred to by scholars the "First NLRB" or "Old NLRB"). In its brief existence, the "First NLRB" established organizational structures which still remain in place 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:
Within a year, however, most of the jurisdiction of the "First NLRB" was stripped away. Its decisions in the automobile, newspaper, textile, and steel industry 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 would survive 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.
The first chair of the "new" NLRB was J. Warren Madden, professor of the University of Pittsburgh School of Law. Madden largely confirmed the previous structure of the "first NLRB" by formally establishing five divisions within the agency:
Benedict Wolf was the 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 econmic data needed to support each case in case it went before the courts.
During his time on the NLRB, Madden was often opposed by the American Federation of Labor (AFL), which believed that Madden was using the NLRA and the procedures and staff of the NLRB to favor the AFL's primary competitor, the Congress of Industrial Organizations (CIO). The NLRB and NLRA were also under intense pressure from employers, the press, congressional Republicans, and conservative Democrats.
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 that the Court would 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 which would 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, chair of the Senate Committee on Education and Labor, to hold no hearings or votes on the bill, and the legislation died.
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 chair, and nominated Madden to a seat on the U.S. Court of Claims.
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 that would 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 chair 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 also 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 also 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. He also 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 chair 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 actually 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.
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 the 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.
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. Interestingly, 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 Association 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, in fact, 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.
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; the Board, on the other hand, is the adjudicative body that decides the unfair labor practice cases brought to it. While the General Counsel has limited independence to argue for a change in the law in presenting cases to the Board, 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 he 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 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 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.
The Board's jurisdiction is limited to private sector employees and the United States Postal Service; other than Postal Service employees, it has no authority over labor relations disputes involving governmental, railroad and airline employees covered by the Adamson Railway Labor Act, or agricultural employees. On the other hand, in those parts of the private sector its jurisdictional standards are low enough to reach almost all employers whose business has any appreciable impact on interstate commerce.
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. (For greater detail on this process see the entry for unfair labor practice).
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—Chair 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 he did. On December 28, 2007, just before the Board lost its quorum, the four members agreed to delegate their authority to a three-person panel (as provided for by the National Labor Relations Act). Only two of the members of the panel (Liebman and Schaumber) would remain on the Board, but the Board concluded that these two members constituted a quorum of the three-person panel and thus could make decisions on behalf of the entire Board. Liebman and Schaumber informally agreed to decide only those cases which were noncontroversial (in their view) and on which they could agree, and issued almost more than 400 decisions between January 2008 and September 2009.
Meanwhile, the U.S. Courts of Appeals for the First, Second, and Seventh Circuits upheld the two-member NLRB's authority to decide cases, while the D.C. Circuit Court of Appeals did not. In September 2009, the Justice Department asked the U.S. Supreme Court to immediately hear arguments concerning the dispute, given the high stakes involved. The Supreme Court granted certiorari in October and agreed to decide the issue. In June 2010, the Supreme Court ruled in New Process Steel, L. P. v. NLRB that the two-member Board had no authority to issue decisions, invalidating the rulings made by Liebman and Schaumber.
The existence of a legitimate quorum on the NLRB came into question again in January 2013, when the District of Columbia Court of Appeals ruled that President Obama had "violated the Constitution when he bypassed the Senate to fill three board vacancies".
|Seat||Member||Entered office||Term expires|
(Term expires in years ending 8 and 3)
|Mark Gaston Pearce (D), Chairman||April 7, 2010||August 27, 2018|
(Term expires in years ending 9 and 4)
|Nancy J. Schiffer (D)||August 2, 2013||December 16, 2014|
(Term expires in years ending 6 and 1)
|Kent Y. Hirozawa (D)||August 5, 2013||August 27, 2016|
(Term expires in years ending 7 and 2)
|Philip A. Miscimarra (R)||August 7, 2013||December 16, 2017|
(Term expires in years ending 5 and 0)
|Harry I. Johnson, III (R)||August 12, 2013||August 27, 2015|
In April 2009, President Obama nominated Craig Becker (Associate General Counsel of the Service Employees International Union), Mark Gaston Pearce (a member on the Industrial Board of Appeals, an agency of the New York State Department of Labor), and Brian Hayes (Republican Labor Policy Director for the Senate Committee on Health, Education, Labor and Pensions) to fill the three empty seats on the NLRB.
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. It further concluded that the Recess Appointments Clause only permitted the President to fill a vacancy if it arose during an intersession recess of the Senate, and the President moved to fill it 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 President Obama's recess appointments to the NLRB were unconstitutional. In a split decision, it also found that President Obama's March 27, 2010 recess appointment of Craig Becker was unconstitutional. Following the Obama Administration's request, the U.S. Supreme Court heard the case, National Labor Relations Board v. Noel Canning, on January 14, 2014.
Between January 2008 and mid-July 2013 the agency never had all five members, and not once did it ever operate with three confirmed members. The agency's ability to operate was in serious jeopardy. 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. The threat to end the filibuster's privileged position in the Senate was intended to end Republican filibustering of NLRB nominees. But on July 16, 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 also 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 Johnson III, Philip Miscimarra, Mark Gaston Pearce and Nancy Schiffer. Johnson and Miscimarra represent the Republican picks for the board. The vote on Pearce was to confirm him for a second five-year term.
The General Counsel, appointed by the President to a four-year term, is independent from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and for the general supervision of the NLRB field offices in the processing of cases.
Lafe Solomon was named Acting General Counsel on June 21, 2010. His nomination to serve as General Counsel was sent to the U.S. Senate on January 5, 2011. Solomon's authority came into question on August 13, 2013 when Judge Benjamin H. 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). Even though other district courts have enforced Solomon's requests, Judge Settle's decision calls into question all of Solomon's activity since his appointment on June 21, 2010. However, Judge Settle focused on subsections (a)(1) and (2) of the FVRA while some believe Solomon's appointment is allowed under subsection (a)(3).
On July 31, 2013, President Obama agreed to withdraw Solomon's nomination in September 2013 and nominate Richard Griffin (whom he had previously nominated for the board, but whose nomination was withdrawn). The Senate approved Griffin's nomination on October 29, 2013, by a vote of 55 to 44.