The National Labor Relations Board, the primary federal labor law watchdog agency, has had an all-Republican board since December, and Democrats have shown more interest in criticizing the board than in adding Democrats.
Senate Democratic Leader Chuck Schumer of New York has the responsibility of nominating candidates to fill the remaining slots, which are reserved for the party opposite the president. Even with several months of warning, Democrats didn’t announce preferred candidates before the seats became open.
Nevertheless, the Democrats have not ignored the board. They’ve frequently attacked it.
Long considered a backwater among federal agencies, the board became prominent under President Barack Obama’s administration when it began aggressively reinterpreting old rules to benefit labor organizing. Under President Trump’s administration, the board has systematically been working to reverse the changes made under the prior administration.
Democrats have responded by attacking the NLRB on multiple fronts, painting the current members as tainted by conflicts of interest. Massachusetts Sen. Elizabeth Warren has pushed for strict enforcement of ethics standards for board members recusing themselves from cases.
They’ve also sought to reverse the board’s policies through legislation. “Instead of protecting graduate workers, the National Labor Relations Board is trying to strip them of their rights,” Vermont Sen. Bernie Sanders, a top contender for the Democratic nomination, said in January when introducing legislation that would prevent proposed rule-making by the NLRB regarding unionizing and graduate students.
The board has been quite active in the last year, putting out some controversial rulings that have been applauded by business and slammed by unions. Late last year, it overturned the Obama administration’s most prominent decision, the ruling that franchiser corporations could be “joint employers” legally responsible for violations by their franchisees, a potentially massive expansion of legal liability. It also ruled last year that misclassifying an employee as an independent contractor is not itself a violation of federal law. It ruled that businesses can ban nonemployee union activists from their property and made it easier for employers to alter provisions in labor contracts without the union’s permission. It has also proposed tightening rules limiting the National Labor Relations Act protections for the use of profane, verbally abusive, and racially insensitive language by labor activists.
The board’s last Democratic appointee, Obama pick Lauren McFerran, stepped down in December when her term expired. That leaves the board down to Chairman John Ring and members William Emanuel and Marvin Kaplan. A White House spokesman and Schumer’s office both declined to comment.
“It’s the first time in history that the board has been all-Republican,” noted Wilma Liebman, former NLRB chairwoman first appointed by President Bill Clinton and currently a senior research associate at Harvard Law School.
Emanuel’s term expires in August, so the board could soon lack a majority for a period until the White House can get a replacement through the Senate.
While past disputes between the Senate and the White House have often resulted in seats being left open, sometimes for years, the current situation sets a poor precedent. It represents ugly politics, in the eyes of many labor law experts. Board decisions have no dissenting opinions, an unusual situation that makes for bad appearances.
“We all take notice. It has caught the attention of employers and unions alike,” said Steve Bernstein, a manager-side lawyer with the firm Fisher & Phillips.
Democrats clamored for a full five-member board during the Obama administration. However, any Democratic nominees would likely find themselves outvoted on most important cases since the board operates by a simple majority. The current board’s three Trump-picked members do give it a functioning quorum, but if just one cannot participate, it cannot issue decisions.
Recusals are a significant issue for the current board. It was forced to vacate a ruling in an important 2017 decision called Hy-Brand involving joint-employer corporate liability when the board’s inspector general determined that Emanuel should have recused himself due to a conflict of interest. Emanuel contended no such conflict existed.
The inspector general’s investigation was initiated following complaints by Democratic lawmakers such as Warren and Sen. Patty Murray of Washington. They’ve continued to push aggressively for the members to recuse themselves in other cases. In response, the board launched an 18-month comprehensive review of its ethics policies and procedures, which found that they provided strong protections against conflicts of interest. Democrats have continued to push for board members to recuse themselves in cases.
Ring told the Washington Examiner in an interview after the report’s release that “for those who want to weaponize ethics and board-member recusals to further an agenda, probably nothing will satisfy them. That’s truly unfortunate.”
