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A Jan. 28, 2015, proposal to add a sixth member to the National Labor Relations Board (NLRB) could “lead to gridlock at the agency, especially for controversial decisions,” according to Michael Lotito, an attorney with Littler in San Francisco.
But it might be just what the agency needs to become less politicized, said Steve Bernstein, an attorney with Fisher & Phillips in Tampa, who said he remembers a time when the board wasn’t so deeply divided along party lines.
Board members are appointed by the president with Senate confirmation. When full, the five-member board traditionally has three members from the president’s party and two from the other party. Sen. Majority Leader Mitch McConnell, R-Ky., and Sen. Lamar Alexander, R-Tenn., introduced the NLRB Reform Act partly “to turn the NLRB from an advocate into an umpire,” the senators announced in a news release. The bill also was introduced last year and was referred to the Senate Health, Education, Labor and Pensions Committee
“To put an end to the partisanship, this legislation would increase the number of board members from five to six, requiring an even split between Republicans and Democrats,” the news release noted. “All decisions would require the agreement of four board members, resulting in consensus from both sides. The five-year terms of the board members would be synched up over time so that a Republican and Democrat seat are up for nomination at the same time.”
General Counsel Oversight
In addition, the bill would “rein in the general counsel” (GC) by giving parties 30 days to seek review of a general counsel’s complaint in federal district court.
“The general counsel office needs to have oversight,” Lotito remarked. “We live in a system of checks and balances. But not with the GC. He or she has the power to upend a proven business model—franchising, for example—without any meaningful oversight. No one in our democratic system, let alone an unelected official, should have that kind of discretion.”
Asian American Hotel Owners Association Chairman Pratik Patel voiced his support for the bill, saying, “Time after time, we have seen the NLRB make dangerous decisions and trample the rights of small businesses and employees.
The NLRB’s action against McDonald’s Corp. is just one example of a misguided action that strikes at the heart of successful entrepreneurship in America. This legislation would not only provide necessary restructuring of the NLRB, but would also protect small business owners and the free market.”
But Bernstein said that the provision proposing an interlocutory appeal of a GC complaint “sticks out like a sore thumb.” It invites judgment before the case is fully ripe, he said. And it “places the cart before the horse” by having district courts hear the issues first, even though they do not address labor matters as regularly as the board and aren’t as familiar with them.
‘Step in the Right Direction’
Still, the bill is “a step in the right direction,” according to Brian Hayes, a former Republican member of the board. “If a regulatory agency wants to expect compliance there needs to be consistency in regulations. There can’t be change as much as we’ve seen in the last five to six years.”
Hayes predicted that with a more stable interpretation of the National Labor Relations Act not only would employers, employees and unions “know that the rules of the road won’t change tomorrow,” but that appeals courts would likely defer more to agency pronouncements.
The bill also would give either party in a case before the board the right to appeal to an appeals court if the board fails to reach a decision in their case within a year. This change would force the board to redesign itself, according to Robert Brody, an attorney with Brody and Associates in Westport, Conn. Without a major overhaul, all the key decisions would go to the courts, he said. The bigger cases have typically been taking more than a year.
Some cases have stayed at the board way too long, Hayes added, noting that one case had been at the board level for nearly a decade. “That kind of administrative delay is not responsible to employer or employees,” Hayes remarked, noting that the NLRB Reform Act might attract some bipartisan support.
“If it results in more certainty and less fluctuation in regulation … I would expect the business community to rally behind it,” Bernstein added.
Lotito predicted that the bill would “pass the Senate and the House and be vetoed by the president and counterbalanced by an AFL-CIO proposal coming soon for ‘meaningful labor law reform’ in the name of employee rights so those workers can exercise their rights without discrimination. I have seen this movie before.”
Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him
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