Bronfenbrenner

This week, President Barack Obama made three controversial recess appointments to the National Labor Relations Board (NLRB) despite Republican efforts to block them and shut the NLRB down for the rest of his term. Here, Kate Bronfenbrenner '76, Ph.D. '93, senior lecturer and NLRB expert, explains the politics and accomplishments of the NLRB over the last year that led Obama to take the risk and keep the NLRB going.

Last year was a good one for workers served by the NLRB. Workers benefited because of the passage of two small but significant rule changes on streamlining pre- and post-election procedures and posting worker rights under the National Labor Relations Act in the workplace and from a series of key decisions. These included reinserting collective bargaining protections for workers who organize through voluntary recognition and last week's D.R. Horton decision protecting the right of employees to refrain from waiving their class action rights in the arbitration of employment agreements.

Perhaps then it is not unexpected that in the last few weeks Mitt Romney, a moderate Republican, called the NLRB "un-American" and bunch of "union stooges" and the president a "job killer'' and "crony capitalist" for his support of the NLRB. Nor should it be surprising that the nation's top anti-union consultants, the Chamber of Commerce, major corporations and right-wing legislators in the House and Senate have pulled out all the stops in their effort to defund and eliminate the NLRB, through legislation, resolutions, hearings and document requests in Congress and by testifying en masse against the election rule change. They even tried unsuccessfully to get Republican board member Brian Hayes to resign from the board rather than to let the election rule change pass.

Having lost that fight, the Republicans still thought they had finally achieved their goal of rendering the NLRB 'inoperable' even if they had fallen short of shutting it down altogether. Craig Becker's recess appointment was ending, Obama's appointments for the board and other federal agencies were stalled by the Republican Congress, and because of the Supreme Court 2010 ruling that a two-member board (Hayes and Chairman Mark Gaston Pearce) lacks the quorum needed for decision making authority, the NLRB's hands were tied unless Obama made recess appointments. However, the Republicans were fairly certain Obama would not take that risk, given the longtime understanding between both parties that no recess appointments are made when Congress is holding "pro-forma" sessions, opening up for only a few seconds every three days.

However, on Jan. 5, Republicans reacted with shock and outrage as Obama made four recess appointments including Richard Cordray as the director of the Consumer Financial Protection Bureau and one Republican (Terence Flynn, board attorney) and two Democrats (Sharon Block, labor department attorney; and Richard Griffin, operating engineers counsel) to the NLRB. A lawsuit was immediately threatened to be filed challenging the constitutionality of all four appointments. Meanwhile, for the first time in a decade, the NLRB has a full board prepared to tackle more cases and rule changes and continue to do labor law reform not by legislation but by regulation, creativity and enforcement. It will be doing this in the same climate of lawsuits, threats, information requests and negative press. The difference this year is that the president is no longer keeping his distance. He has decided it is good to be on the NLRB's side.