Policymaking under the Bush II National Labor Relations Board: Where Do We Go from Here?
Twomey, David P., Labor Law Journal
With the decisions issued at the close of its fiscal year in September of 2007, on top of highly publicized decisions issued previously, the National Labor Relations Board (Labor Board or NLRB) has come under heavy criticism from union and political leaders, as well as academicians.1 This article will discuss the politicization of the Labor Board. It will present the U.S. Supreme Court's analytical framework for reviewing administrative agency policymaking decisions, as set forth in its landmark Chevron U.S.A. v. Natural Resources Defense Council, Inc. decision.2 Two recent decisions of the Labor Board will be evaluated under the Chevron standards. The article will conclude with comments on whether or not the agency is fulfilling its statutory mission to administer the National Labor Relations Act (NLRA or Act) according to the terms of the Act itself, as interpreted by the U.S. Supreme Court and offers some suggestions on how to revitalize the agency.
THE POLITICIZATION OF THE NLRB AND CURRENT EFFECTS
The 1935 Wagner Act Congress recognized that the new agency it was creating to administer this act would be an adjudicatory body rather than a mediation and arbitration agency like that created by the Railway Labor Act of 1926 as amended in 1934. Consequently, it deleted references to the appointment of partisan members from management and union backgrounds in the final draft of the act, and it was fully understood that the Board was to be staffed by three impartial public members, appointed from government service or academic careers.3 So also, the Congress that expanded the Labor Board to five members in 1947 continued to expect that the Board members would be impartial, neutral adjudicators.4 Presidents Roosevelt and Truman filled appointments to the Board with nonpartisan appointees. Starting with President Eisenhower, however, appointment practices changed. Since 1970 a majority of appointments to the Board have come from management and union law practices rather than non-partisan and neutral backgrounds.5
While the NLRA is silent on the matter, a tradition has developed whereby both Democrats and Republicans are appointed to the Board, with the President's party holding a three-to-two majority of appointments and also the chair.6 Traditionally, at the confirmation stage each NLRB nominee had been given individual consideration by the Senate Labor Committee and the Senate as a whole and the President had the prerogative of staffing the Board with any reasonably well qualified individual of his choosing.7 Starting in the second Reagan administration and into the George H. W. Bush administration, greater Senatorial control over the appointment process occurred. Board appointments in both the George H.W. Bush and Clinton administrations tended to come in "packaged deals," whereby Senate power brokers in consultation with industry and labor interest groups insisted that the President acquiesce to certain of their choices as the price of getting his Board nominee(s) confirmed by the Senate.8 Moreover, in both these administrations and continuing in the George W. Bush (Bush II) administration, recess appointments have been utilized while the Senate and White House bargained over packaged deals.9
Thus, decisionmaking at the NLRB has undergone a transformation. Decisions formerly made by impartial neutral adjudicators are now perceived to be made by arguably partisan members from unionand management-side backgrounds, with the President's party holding the majority appointment. The politicized appointment process has had an adverse impact on the perceived fairness of the agency as an adjudicative body responsible for applying the explicit policies set forth in the NLRA as well as the formulation of policies to fill in gaps left implicitly or explicitly by Congress to respond to the developing intricacies of our highly competitive global economy.
Management practitioners and former Board members criticized the Clinton Board for a number of its decisions, which overruled prior precedent and were perceived to afford greater protections for workers in the evolving economy of the period. …