Ending the War Games Over the NLRB

Based on what our senators tell us, we have recently slinked away from the precipice of a figurative nuclear war. That such mutually assured destruction was nearly wrought over the National Labor Relations Board -- an agency whose appropriations amount to little more than a rounding error in the federal budget -- must be shocking to many. And, while the eleventh hour deal on filibusters of executive branch nominees may have moved the doomsday clock back a few seconds, it remains dangerously and unnecessarily close to striking midnight.

The inability to keep this small but important agency fully staffed and functioning is not a recent failure. While the National Labor Relations Act requires a five-member Board appointed by the President with the advice and consent of the Senate., the Board has had a full complement for only 55 of the past 163 months (about four of the past 13 years) -- and had only two members for more than a year. Allowing an agency to limp along with less than full membership and with serial recess appointments is no way to run a government unit. However, the NLRB has been run in just such as slapdash manner since the closing days of the Clinton administration.

The reason for the perpetual understaffing is plain. Unlike many other administrative agencies, the Board regulates almost exclusively through its quasi-judicial powers and not through its rule-making authority. Regulating through deciding cases yet not being bound by precedent like a court, the various Boards have been all too tempted to quickly overrule previous Boards dominated by the other party. Thus the Board swings like a pendulum, although, with more speed and less grace. Given that quick shifts in national labor policy occur not in the open through notice and comment rulemaking but in the shadows of the NLRB's lonely office, it should come as no surprise that both parties go to the brink of annihilation to prevent the other from leveraging its temporary political advantage to drastically alter the interpretation of labor law.

And to the brink they have gone with reckless abandon. The most recent slow peddling of President Obama's NLRB nominees by Senate Republicans through the filibuster is only the latest chapter in this war story. President Bush's nominees to the Board were also stymied by the Senate -- although not through the use of the filibuster but through willful inaction. That inaction, and the novel strategy developed by Senator Reid to keep the Senate in perpetual session with the express goal of preventing recess appointments, was so effective that it shrank the Board from five to two members. Senator Reid's latest nuclear gambit may have cleared the way for President Obama's NLRB picks but it also cleared the way for more controversial nominees and more dangerous maneuvers to get them installed. For example, what is to prevent a Republican President from nominating representatives of the Chamber of Commerce or the Right to Work foundation to be on her NLRB "team" and future Senate leaders from taking the upper chamber to the brink of all-out war to see them seated?

Real disarmament can only take place when the political nature of the Board is reformed. Remove the ability of one party to drastically alter labor policy without addressing the out-party's concerns and you remove the incentive to annihilate the Senate over this little agency. Thus, some have suggested doing away with the Board all together and allowing the courts to deal with the day-to-day issues arising under the Act.

Flawed as it is, the Board should not be so easily cast aside. Instead, we should retain the Board, its administrative expertise, and the guarantee of a majority decision that comes with a five-member Board but alter the way in which Board members are appointed. Accordingly, the President should get only two seats and the other party should also get two. Those four members' first task would be to agree on the nomination of a fifth member to be confirmed by the Senate. If they were unable or unwilling to agree within thirty days, Board members' salaries could be withheld until agreement was reached.

Such a structure would have many benefits. First, the process of discussing and selecting a fifth colleague would force the two sides to work together from day one building the trust and relationships needed to operate a federal agency. Second, the requirement that the four partisans agree on a fifth member would result in the appointment of someone truly from the middle and open to persuasion and reason from both sides. Third, employers and unions alike would then be assured that the Board's decisions would not be the product of partisan politics. Instead, changes to national labor policy would necessarily require the assent of the neutral third vote. Or absent that agreement, the locus of policy change would be shifted to Congress -- where such matters should constitutionally be decided anyway. Fourth, such a structure would completely remove the incentive to grandstand and block otherwise qualified nominees. Each party gets to pick its representatives but that matters far less than how those representatives work together in choosing the swing vote and thereafter. Incentives to "shut down" the agency would be removed because neither side would be guaranteed to take a four year drubbing. Finally, such a structure would reduce the incentives to appoint hyperpartisans to the Board because such Board members would struggle to persuade the neutral Board member.

The structure could be further refined to require that the neutral seat be renominated by a majority vote of the other four members every two years. That would prevent either side from perpetually capturing the neutral vote and would ensure regular cooperation between the Republicans and Democrats on the Board.

Such a process would be difficult to implement as it would require Congress to amend the Act and the President to sign the bill into law. Obviously, the sitting President at the time would give up the ability to install his or her controlling "team" on the Board. However, the benefit to the rule of law and stability of government would be well worth the price. Unless we stop the pendulum it will eventually swing out of control until the Board loses its remaining credibility. Like other disarmament schemes, the trust and cooperation to make it happen may not come easily. Having recently stared into the self-made abyss of the "nuclear option," perhaps the time is right to try.

Mr. Mastrosimone is an Associate Professor of Law at Washburn University School of Law in Topeka, Kansas. Prior to teaching, he was a Senior Legal Counsel in the NLRB's Office of Representation Appeals and to former NLRB Chairman Robert Battista.