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Sept. 16 — A bill introduced Sept. 16 by Sen. Lamar Alexander (R-Tenn.) and co-sponsored by Minority Leader Mitch McConnell (R-Ky.) would enlarge the National Labor Relations Board from five to six members and make important changes in the board's decision-making process as well as in litigation before the NLRB and the federal courts.
The proposed National Labor Relations Board Reform Act (bill number not yet available) would divide the board seats between the two major political parties and would phase in a new appointment and confirmation procedure for board members. In a step Alexander said “will require both sides to find a middle ground,” a four-member majority would be required for a quorum and to make an NLRB determination in representation cases and unfair labor practice proceedings.
The bill would significantly change the authority of the NLRB's general counsel. Parties would be able to file federal court challenges as soon as the general counsel issued, or even authorized, unfair labor practice complaints, and courts could halt further proceedings if they determined the general counsel lacked substantial evidence showing violations of the National Labor Relations Act.
Alexander's bill would also provide that any party in an NLRB case would be able to obtain a de novo review of a decision by an administrative law judge or an NLRB regional director if the board failed to issue its own final order within a year.
Alexander has been critical of the NLRB in the past, and in a Senate speech on the new proposal, he argued the board has been partisan and “freewheeling.” Alexander argued his bill “will change the NLRB from an advocate to an umpire … without taking away one single right or one single remedy from any business, employee or union.”
The bill would make a number of changes to Section 3 of the NLRA, 29 U.S.C. § 153, which covers the authority of the board and the general counsel.
First, board members would no longer be appointed by the president “with the advice and consent of the Senate.” The bill would add a requirement that appointments could only be made “after consultation with the leader of the Senate representing the party opposing the party of the President, by and with the advice and consent of the Senate.”
NLRB membership would be increased from five to six members by appointing a sixth member for a term that would expire “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.
Three members each would be from the two major political parties, and beginning Jan. 1, 2020, the agency would transition to having two members—one from each party—serve terms that would end on the last days of 2021, 2023 and 2024.
The proposed six-member board would require four members to make any “determination,” the bill provides. The proposed legislation would amend the NLRA to provide that four members would be a quorum for board action, and states, “Any determination of the Board shall be approved by a majority of the members present.”
In his remarks to the Senate, Alexander said such a “majority of four” will require the board to find middle ground before making any determination in a case.
The proposed NLRB Reform Act would provide that if the board had not issued any “final order” within one year after a decision by an administrative law judge or a regional director, any party to the case would be able to “move to discharge the case.” Upon the filing of such a motion, the bill provides, the ALJ or regional director decision would become a final agency action.
The bill “will change the NLRB from an advocate to an umpire … without taking away one single right or one single remedy from any business, employee, or union,” Sen. Lamar Alexander said.
In the event the board failed to take action in a year and a final agency action took effect under the “discharge” procedure, the bill provides, any party would be permitted to obtain judicial review of the final agency action in a federal appeals court, which the bill mandates “shall review the order de novo.”
Alexander told the Senate in his floor speech the NLRB has been “slow to resolve disputes,” stating that last year approximately 30 percent of the cases before the board were pending for more than a year.
His proposed legislation would penalize the agency for delay.
Under the proposal, if the board fails within two years of the bill's enactment to issue final orders in 90 percent of the cases pending at the time the bill is enacted, the agency's authorized appropriations for the next two fiscal years would be limited to 80 percent of the authorizations for the prior two fiscal years.
In the event the board failed within four years to issue final orders in 90 percent of cases pending two years after the date of enactment, the bill would cap authorizations “for each succeeding fiscal year” at “the amount so appropriated for the fiscal year that is 4 years after the date of such enactment.”
The functions and operations of the NLRB's general counsel are slated for substantial change under the legislative proposal.
Under the NLRA, the general counsel currently has “final authority” for the investigation of unfair labor practice charges and issuance of complaints under the act. Alexander's proposal would add a new statutory provision entitled “Review of General Counsel Complaints” that would allow challenges to the general counsel's positions before they are even presented in an NLRB administrative hearing or in an injunction proceeding under the NLRA.
First, the bill would provide that any person “subject to” an unfair labor practice complaint that is “issued or authorized” by the general counsel may obtain immediate judicial review of the complaint by filing within 30 days a petition in a federal district court. The petition could be filed in a judicial district where the person resides or transacts business, in the district where the unfair labor practice in question allegedly occurred or in the U.S. District Court for the District of Columbia.
Upon the filing of such a petition, the bill provides, “[t]he court may prohibit any further proceedings relating to such complaint if the court determines that the General Counsel does not have substantial evidence that such person has violated this Act.”
Finally, the proposal would make a major change in NLRB administrative proceedings in unfair labor practice cases. Prehearing discovery has generally not been available in such cases, but Alexander's bill would add a “Discovery” provision to the NLRA.
In any case where an unfair labor practice complaint was issued, the bill provides that any party may 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 552(b)(5) of title 5, United States Code, related to the complaint.”
Section 552(b)(5) is a provision in the Freedom of Information Act that generally authorizes agencies to exempt from disclosure “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”
To contact the reporter on this story: Lawrence E. Dubé in Washington at email@example.com
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Text of the bill is available at http://op.bna.com/dlrcases.nsf/r?Open=ldue-9nzqcs.
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