NLRB to Seek Supreme Court Review of “Recess” Appointment Decision

The National Labor Relations Board (NLRB) March 12 announced it will file a petition with the United States Supreme Court for review of a Jan. 25 decision by an appeals court, which found President Obama’s “recess” appointment of members to the board in early 2012 was unconstitutional. 

“Fifteen months ago, the President made an unprecedented power grab by placing political allies at a powerful federal agency without even trying to obtain the Senate’s advice and consent,” said Sen. Mitch McConnell (R-Ky.) in a March 12 statement. “The U.S. Court of Appeals for the D.C. Circuit correctly struck down these unlawful, so-called appointments.”

The original case was brought by Noel Canning, a Washington state bottling company, which challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. ABC-led Coalition for a Democratic Workplace (CDW) intervened in the case and 42 Republican Senators and the U.S. House of Representatives Speaker John Boehner (R-Ohio) filed amicus briefs echoing the argument that, because the Senate was not in session when the recess appointments were made, they are unconstitutional. In January, the appeals court agreed.

Following the Jan. 25 decision, NLRB Chairman Mark Pearce defiantly stated the board “will continue to perform [its] statutory duties and issue decisions.”  

As a result, ABC encouraged Congress to restrain the NLRB, since the NLRB is unlikely to impose any kind of restraint on itself, and ensure that the agency does not make a bad situation even worse. On the same day, Obama re-nominated the unconstitutional appointees.

The appeals court decision potentially invalidates all NLRB rules and decisions issued over the past year because the board did not have a quorum, including the controversial “ambush” elections rule, which CDW filed a request to block in January, citing the Noel Canning decision.

“It’s a shame that these unlawful appointees continue to exercise power, and I feel confident that the Supreme Court will not allow the President to dramatically increase the scope of his power to make recess appointments and avoid the Senate’s constitutional role in confirming high-level federal officials,” McConnell said.