Playing with a Full Board: Trump Administration Should Fill Out the NLRB

Posted by Olivia Grady on Wednesday, February 1st, 2017 at 12:23 pm - Permalink

By Olivia Grady

The National Labor Relations Board (NLRB) is an independent agency of the U.S. government that protects employees’ rights to organize and to decide whether to be represented by a union. The Board also adjudicates labor disputes. The Board therefore conducts elections, investigates charges of unfair labor practices, tries to settle unfair labor practice cases, decides these cases if no settlement can be reached, and enforces orders.

The Board was started as the National Labor Board (NLB) on August 5, 1933 by President Franklin Roosevelt in order to protect the collective bargaining rights of unions in the National Industrial Recovery Act. The NLB however was unable to fulfill its role, and on June 29, 1934, President Roosevelt established the NLRB through Executive Order 6763, which allowed the Board to issue subpoenas, hold elections and solve labor disputes.

Because President Roosevelt removed cases from the Board, Senator Robert Wagner pushed for the National Labor Relations Act, which was passed on July 5, 1935. The Taft-Hartley Act in 1948 however diminished the power of the NLRB.

The NLRB was originally intended to only have 3 members, but it is now supposed to have 5 members according to the NLRA. The President appoints members to the NLRB for five-year terms, and the Senate gives its consent. Three members are usually of the President’s political persuasion, and the other two are of the opposite persuasion. This tradition of Presidents appointing members from another political party began with President Eisenhower and has been followed since despite the fact that it is nowhere in the law.

Although the Board is supposed to have 5 members, the NLRB now only has 3. Today, Philip Miscamarra is the Acting Chairman after President Donald Trump gave him that position on January 23, 2017. Mr. Miscamarra has been on the NLRB as one of the two “Republican” members since August 7, 2013 after President Barack Obama nominated him.

The second Board member is Mark Pearce. He joined the NLRB on April 7, 2010 after his recess appointment. He was Chairman from August 27, 2011 to January 22, 2017. He was appointed for a second term on August 23, 2013, but his term expires on August 27, 2018.

The final current Board member is Lauren McFerran, who was sworn in on December 17, 2014. Her term will end on December 16, 2019.

The NLRB last had five members in August 2015 when Harry Johnson, III and Kent Hirozawa were members. Mr. Johnson was sworn in on August 12, 2013, but his term expired on August 27, 2015. President Barack Obama took no action to fill that seat. Mr. Hirozawa’s term also expired on August 27 in 2016. While President Obama attempted to nominate Mr. Hirozawa to a second term, the U.S. Senate refused to confirm him.

On June 26, 2014, the U.S. Supreme Court interestingly struck down the “recess” appointments of three NLRB members by President Obama. The Court argued that since Congress was not actually in recess, President Obama could not by pass the Senate using this method.

Because the NLRB currently has a majority of “Democrat” members, President Donald Trump should appoint two new pro-worker members as soon as possible so that the NLRB can start repealing some of President Obama’s harmful regulations.

The new NLRB will likely review and change the joint employer rule, the micro-units policy, decisions on handbook interpretations and others. For example, since 2011, the NLRB has expanded the definition of joint employer to force more businesses to bargain with unions. These businesses have to bargain even though they don’t control the employees, i.e. the temporary employees from a staffing agency. That’s why it is so important for President Trump to appoint two new members quickly.