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Labor News
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Court Throws Out Illegal
NLRB Recess Appointments
O
n January 25, a federal appeals court ruled
that President Obama violated the U.S.
Constitution when he bypassed the Senate
to fill three vacancies on the National Labor
Review Board (NLRB) last January. The deci-
sion could potentially invalidate all decisions issued by the
NLRB since those “recess appointments” as well as future
decisions made until the issue is resolved, most likely by the
U.S. Supreme Court.
In
Noel Canning v. National Labor Relations Board
, the
United States Court of Appeals for the District of Columbia
found the President’s NLRB appointments invalid for two
reasons. One, the Senate was not in recess as required by the
Constitution, and two, the vacancies did not occur during
such a recess.
Employer groups widely applauded the decision. “Employ-
ers across America thank the court for its decision to strike
down a political, partisan move by the administration to pack
the NLRB with illegal recess appointees,” said Coalition for a
Democratic Workplace (CDW) Chairman Geoffrey Burr. “This
is a major milestone in reining in an out-of-control federal
agency seemingly bent on enacting Big Labor’s special inter-
est agenda.”
U.S. Chamber of Commerce President and CEO Thomas
J. Donohue issued the following statement: “We are pleased
with the D.C. Circuit’s ruling that the President’s recess ap-
pointments to the NLRB were unconstitutional. We warned
last year that by appointing these members to the NLRB in
such a controversial fashion, the President placed a cloud of
uncertainty over the agency and its work. The D.C. Circuit’s
historic decision has confirmed our concerns. The U.S.
Chamber has been proud to stand with our member Noel
Canning from the beginning, and they will continue to enjoy
our full support and backing.”
Considering the Aftermath
The ruling will certainly have implications on past and future
NLRB actions and on labor relations. The NLRB appears to
be taking a business-as-usual response. NLRB Chairman
Mark Gaston Pearce issued this statement following the D.C.
Circuit’s decision:
“The Board respectfully disagrees with today’s decision
and believes that the President’s position in the matter will
ultimately be upheld. It should be noted that this order ap-
plies to only one specific case,
Noel Canning
, and that similar
questions have been raised in more than a dozen cases pend-
ing in other courts of appeals.
“In the meantime, the Board has important work to do.
The parties who come to us seek and expect careful consid-
eration and resolution of their cases, and for that reason, we
will continue to perform our statutory duties and issue deci-
sions.”
The Chamber of Commerce noted the uncertainty created
by the decision and urged the Obama administration to seek
immediate Supreme Court review.
Writing in
Politico
, Donohue said, “Those regulated by the
NLRB now face a host of difficult questions: Are the NLRB’s
orders currently valid? Will they be invalidated in the future?
Can a company reopen a case that has already been decided
against it? Does a company need to raise a challenge to the
recess appointments in its own case? What will happen if the
NLRB sues to enforce an order outside of the D.C. Circuit?
Should a company rush to file an appeal in the D.C. Circuit?
Can a company wait and see what happens in the Supreme
Court, or must it comply with an NLRB order now?”
Rep. John Kline (R-Minn.) also urged the President to
quickly fix the situation. “The President has run roughshod
over the Constitution and has damaged the integrity of the
board, harming our nation’s workforce in the process,” he
wrote in the
Minneapolis Star-Tribune
. “A broken board can
be made whole if President Obama sets aside politics and
works with the U.S. Senate to seat qualified nominees. The
president created this crisis, and it is time he addressed it.”
Following the ruling, the CDW filed a request with the U.S.
Court of Appeals as part of its ongoing litigation to block a
union-election regulation pushed by the Obama administra-
tion. The rule would replace decades of practice in union-
recognition elections with “ambush” elections that deprive
employees and employers the opportunity to have a fair
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