Court Ruling Puts NLRB Future in Jeopardy

Court Ruling Puts NLRB Future in Jeopardy

Article Courtesy of HR Hero

by Tammy Binford

A court ruling has put the brakes on the National Labor Relations Board (NLRB) and possibly invalidated decisions the Board has made for the last year.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled on January 25 that President Barack Obama acted unconstitutionally when he made three recess appointments to the NLRB on January 4, 2012.

The court’s ruling is seen as good news for employers because it seems to thwart what many in the business community see as the NLRB trying to rewrite labor law to benefit unions.

The ruling isn’t expected to stop cases at the administrative law judge level, but when matters go to the NLRB, there will be no quorum. The D.C. Circuit panel’s ruling is likely to eventually end up with the U.S. Supreme Court, but it may be over a year before there’s any resolution at that level.

The normal process for filling vacancies at the NLRB is for the president to send nominations to the Senate for confirmation. Obama had sent nominations in previous years, but the Senate didn’t act on them. The president can lawfully place members on the Board without Senate confirmation through the recess appointment process if the Senate is in official recess when the appointments are made.

The Senate was in a holiday recess when Obama appointed Democrats Sharon Block and Richard Griffin and Republican Terence Flynn to the NLRB on January 4, 2012. But the Senate was still in “pro forma” session, meaning it was gaveled in and out of session every few days.

Republicans and business groups, who have complained that the NLRB is biased in favor of labor unions, claimed Obama’s appointments were invalid since the Senate was technically in session. Soda distributor Noel Canning challenged the appointments in a lawsuit against the Board. The three-judge panel of the D.C. Circuit heard oral arguments on December 5.

The NLRB’s membership and its ability to maintain a quorum have been the subject of controversy for years. The court ruling seems to leave the Board with just one member, Chairman Mark Gaston Pearce, a Democrat who went on the Board as a recess appointment in April 2010. He was confirmed by the Senate in June 2010. His term ends August 27, 2013.

The NLRB has been operating with three members since Republican Brian Hayes’ term ended on December 16, 2012. Before his term ended, the Board already was operating with one vacancy because Flynn resigned in July 2012 following allegations that he had inappropriately shared nonpublic Board information with former NLRB member Peter Schaumber.

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