On September 16, 2014, Senate Republican Leader Mitch McConnell (R-KY) and Senator Lamar Alexander (R-TN) introduced the National Labor Relations Board Reform Act. In a press release, Sen. McConnell said, “it’s past time to restore the NLRB to its proper role as umpire, instead of advocate for the Right or Left.” Co-sponsor Alexander said, “The board is too partisan, swinging from one side to the other with each new administration . . . It's time for the board to restore stability to our nation's workplaces, with nonpartisan decisions made more quickly, assisted by a neutral general counsel.”
Appointments to the Board have created political battlefields in recent years. The U.S. Supreme Court’s recent decision in Noel Canning v. NLRB, which found President Obama’s recess appointments of three members to the Board unconstitutional, highlights the partisan nature of these appointments. President Obama appointed one of those unconstitutional recess members, Richard Griffin, to serve as the NLRB’s current General Counsel. Mr. Griffin is also a former union lawyer.
President Obama recently nominated another recess appointment, Sharon Block, for a second term on the Board. Block’s appointment is currently pending confirmation by the Senate. President Obama nominated Block to replace Nancy Schiffer, whose termhiffer’s term expires December 16, 2014. If Block is confirmed, the NLRB will have three Democratic Members and two Republican Members.
To reduce the impact of partisan politics, the legislation would expand the Board from five members to six, three Republicans and three Democrats. The bill would require a majority of four members to make a decision to encourage consensus from both sides. The five- year terms of the members would be staggered, and synchronized in pairs, with one member from each political party facing confirmation at the same time.
The legislation comes in reaction to controversial actions of the General Counsel over the last few years, including a potential revision to the joint employer standard and the decision to issue complaints against McDonald’s franchises and the franchisor. The bill provides for independent judicial review of the General Counsel’s decision to issue a complaint and gives the parties much-needed new discovery tools. The legislation would give parties 30 days to seek review of a General Counsel’s complaint in federal district court. The bill would grant parties the right to obtain General Counsel memoranda and all relevant documents within 10 days of receiving a complaint.
Finally, the legislation would provide much-needed relief from the delays parties face at the Board. Over a hundred cases at the Board have been pending for more than a year. These cases do not include the 436 decisions returned to the Board as a result of the Noel Canning decision. At least one case, Roundy’s, involving union organizers’ access to an employer’s private property, has been pending at the Board for seven years. Under the bill, if the NLRB fails to reach a decision within one year, either party may appeal to a federal court of appeals for a de novo review of the case. Over the first two years of the law, funding for the entire NLRB would be reduced by 20% if the Board does not decide 90 percent of its cases within one year.
The complete text of the National Labor Relations Board Reform Act can be found here.