NLRB Appeals Recess Appointment Decision to U.S. Supreme Court

The National Labor Relations Board (NLRB) April 25 filed a petition with the U.S. Supreme Court to appeal a Jan. 25 ruling that the 2012 presidential recess appointments of three members to the board were unconstitutional. 

The original case was brought to the U.S. Court of Appeals for the D.C. Circuit 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. The ABC-led Coalition for a Democratic Workplace (CDW) intervened in the case, successfully arguing that, because the U.S. Senate was in session when the recess appointments were made, they are unconstitutional.

The appeals court decision potentially invalidates all NLRB rules and decisions issued over the past year because the board did not have a quorum.

After NLRB Chairman Mark Pearce responded to the Noel Canning decision by defiantly stating the board “will continue to perform [its] statutory duties and issue decisions,” ABC encouraged Congress to restrain the NLRB because it appeared the board would be unlikely to impose any restraint on itself.

ABC supported the “Preventing Greater Uncertainty in Labor-Management Relations Act” (H.R. 1120), which would prohibit the NLRB from taking any action that requires a quorum until the U.S. Supreme Court issues a decision on the recess appointments or the Senate confirms a quorum.

The legislation passed the U.S. House of Representatives April 10 in a vote of 219-209 and an identical companion to the bill was introduced in the Senate April 26 by Sen. Lamar Alexander (R-Tenn.).

Specifically, the legislation would: 
  • prevent the NLRB from issuing more decisions;
  • cease any enforcement of existing decisions issued since Jan. 4, 2012, and ensure those decisions are reviewed and approved by a constitutionally valid NLRB panel as soon as one is seated;
  • preserve workers’ ability to petition for union elections; and
  • allow NLRB regional offices to continue accepting and processing unfair labor practice charges.
Two of the three unconstitutionally appointed members of the NLRB have been renominated by President Obama, in addition to Pearce. The Senate Committee on Health, Education, Labor and Pensions has scheduled confirmation hearings for the nominees for May 16.