On Feb. 13, a U.S House of Representatives subcommittee held a hearing on the future of the National Labor Relations Board (NLRB) following the Jan. 25 decision by an appeals court that President Obama’s recess appointment of members to the board in early 2012 was unconstitutional. The challenge was brought by the ABC-led Coalition for a Democratic Workplace (CDW) and the ruling invalidates decisions unlawfully made over the past year because the board did not have a quorum.

In a letter, sent to the chairman and ranking member of the Subcommittee on Health, Employment, Labor and Pensions, ABC applauded the appeals court decision, but noted that it has not provided any certainty to the construction industry on how the decision will impact recently decided, pending or future NLRB activity. ABC pointed out that this uncertainty imposes real costs on employers and other parties involved in pending NLRB actions, some of which must continue to spend thousands of dollars to resolve pending disputes, while others have to continue to comply with potentially invalid decisions and enforcement orders. 

In addition, the NLRB has yet to announce its next steps, but it is unlikely the board will stand down and await a Supreme Court decision. In fact, on the same day the appeals court issued its ruling, NLRB Chairman Mark Pearce defiantly stated the board “will continue to perform [its] statutory duties and issue decisions.” 

In its letter, ABC noted that since the NLRB is unlikely to impose any kind of restraint on itself, it is now up to Congress to intervene to ensure that the NLRB does not make a bad situation even worse. 

“Action should be taken immediately to limit the Board’s power to issue new decisions, to prevent it from enforcing decisions dating back to the president’s unlawful intrasession recess appointments, and to guarantee that such restrictions stay in place until a quorum can be confirmed by the Senate,” ABC wrote.

Roger King, a partner with the law firm of Jones Day and an attorney for CDW, testified during the hearing and echoed ABC’s concerns.

“In short, the Board finds itself in the same position it has repeatedly found itself during the last decade:  its ability to perform its statutory duty of enforcing the nation’s labor laws and promoting industrial stability is in doubt,” King said. “Going forward, I encourage this Committee, Congress, the Administration, and the Board to ensure that the Board’s future is not called into further doubt and that this unnecessary uncertainty is brought to an end.”