From Advocate to Umpire: Senators Alexander and McConnell Propose NLRB Reform Act that Would Modify Board Composition and Procedures Significantly, Jones Day Labor Blog

In September, Senators Lamar Alexander (R-Tenn.) and Mitch McConnell (R-Ky.) introduced a bill that would modify the current structure of the National Labor Relations Board and its procedures significantly. In his Senate speech on the new proposal, Alexander argued that the Board has three major problems that the bill is aimed at resolving "without taking away one single right or one single remedy from any business, employee, or union." Alexander contends that the NLRB is in dire need of restructuring and that the bill will facilitate the Board’s much needed transformation "from advocate to an umpire."  The full congressional record of this session can be found at https://www.congress.gov/congressional-record/2014/09/16/senate-section/article/S5630-1. While there has been no action on the bill and action is unlikely before the midterms, it is interesting to review what the senators believe needs fixing at the NLRB.

Problem One: Partisan Advocacy

Alexander criticized the 'partisan advocacy' of the Board, deeming this the Board’s biggest problem. He argued that the Board has become an advocate for different interest groups, changing its position with each administration. To address this issue, the bill would alter the authority of the Board and General Counsel, which is currently provided for in Section 3 of the NLRA, 29 U.S.C. § 153. Alexander’s proposal enlarges the NLRB from five to six members, with the sixth member’s appointment expiring "on the day before the first date on which a full term of another member of the Board commences that is after the date of enactment" of the legislation. The bill will mandate a Board consisting of three Republican and three Democrat members, as well as a majority of four members for Board action. According to Alexander, a quorum of four will require both sides to "find middle ground" before reaching decisions. That of course represents a significant change.  Currently, the party in the White House controls the majority and the case law swings radically from union friendly to management friendly, depending on whether Democrats or Republicans control.

Problem Two: General Counsel Exceeding Authority

In addition, Alexander termed the Board a "freewheeling advocate" for its General Counsel. He suggests the Board’s "most recent general counsels have been exceeding their statutory authority and bringing questionable cases that threaten American jobs . . ." Under the Act, the General Counsel has "final authority" for the issuance of complaints and investigation of charges. The proposed bill, however, would allow businesses and unions to challenge complaints filed by the General Counsel in federal court as soon as the complaint is authorized by filing a petition within 30 days in a district court. The judicial district where the person resides or maintains business, the district in which the alleged unfair labor practice occurred, or the U.S. District Court for the District of Columbia would all be appropriate forums to file the petition. If the district court determines that the General Counsel lacks substantial evidence to warrant violations under the Act, the court may terminate the Board proceedings.

Again this would be a major change in current practice. Right now there is no direct way to challenge the issuance of the complaint. It can only be done by litigating before an Administrative Law Judge and then the full Board. Only then, can an aggrieved party seek review in a court of appeals.

Problem Three: Lengthy Delays

The proposed legislation also provides penalties for agency delay. Alexander told the Senate that the NLRB has been "slow to resolve disputes," noting one case that has been pending at the Board for more than seven years. To encourage timely resolution of cases, the proposed bill allows any party to "discharge the case" if the Board fails to issue  a "final order" within one year after a decision by an administrative law judge or Regional Director. The ALJ or Regional Director’s decision would then become a final agency action and qualify for de novoreview before a federal court of appeals. The bill further incentivizes expeditious resolution of cases by providing a 20% budget cut to the agency if it fails to decide within one year 90% of the cases pending at the time the bill is enacted.

Additional Procedural Modification: Discovery Provision

Lastly, the proposal provides for a significant change in the Board’s administrative proceedings in unfair labor practice cases. Generally, pre-hearing discovery is not available in unfair labor practice litigation.  The bill’s discovery provision would allow any party to a ULP case to obtain from the General Counsel any advice memorandum prepared by an attorney of the Division of Advice of the Office of the General Counsel, any internal memorandum of the Office of the General Counsel, or any other inter-agency or intra-agency memorandum or letter described in section 5 U.S.C. § 552(b)(5) (i.e., the Freedom of Information Act provision that protects such memoranda from disclosure) that relates to the complaint. This provision would allow a respondent to learn the General Counsel’s litigation strategy prior to the start of the unfair labor practice trial and brings the NLRB litigation process closer to the civil litigation process.

Conclusion

Don’t expect any of these changes to become law anytime soon.  But the proposed bill opens a public dialogue on the functioning of the NLRB and puts the agency on notice that at least some lawmakers are quite unhappy with how the NLRB is operating.  Stay tuned for further discussions when former recess appointee Democrat Sharon Block’s nomination to replace Board Member Nancy Schiffer comes before the Senate during its lame duck session after the November elections.  It is widely assumed that she will be confirmed.