The NLRB's uncertain state

February 5, 2013

POLITICO

Thomas J. Donohue

The National Labor Relations Board made news last week by turning a blind eye to a historic legal ruling that the president’s recess appointments of Sharon Block, Terence Flynn and Richard Griffin to the NLRB on Jan. 4, 2012, are unconstitutional.

In support of its member, the Noel Canning Corp. of Yakima, Wash., the U.S. Chamber of Commerce briefed, argued and won the challenge to the recess appointments in the U.S. Court of Appeals for the D.C. Circuit.

The D.C. Circuit held that the three NLRB recess appointments were unconstitutional — and therefore, the board lacks the quorum it needs to conduct business. The ruling calls into doubt hundreds of recent rulings by the NLRB — perhaps as far back as the recess appointment of Craig Becker to the board in August 2011 — and every decision going forward.

Yet NLRB Chairman Mark Gaston Pearce issued a statement claiming that the decision “applies to only one specific case, Noel Canning,” and he informed affected parties that the NLRB would continue business as usual despite the ruling. And apparently the administration might dawdle instead of promptly pushing the case to the U.S. Supreme Court for review. This will exacerbate the uncertainty created by the administration with its reckless recess appointments.

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 to see what happens in the Supreme Court, or must it comply with an NLRB order now?

While the NLRB shrugs its shoulders and says, “So what?” the business community is asking, “Now what?” The administration knew full well that these controversial appointments would be challenged. Now, it must take some sensible steps to avoid adding to uncertainty and wasting time and money.

First, the Department of Justice should seek Supreme Court review of the decision as soon as possible to achieve nationwide certainty on the validity of the recess appointments. It should not, as some press reports have suggested, wait for a more favorable decision to be issued by a different appeals court. The case is ready for review now.

Second, pending a Supreme Court ruling, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future.

Third, rather than deny the effect of the D.C. Circuit’s decision, the government should find a fair and orderly way to process the claims of those who are adversely affected.

An appropriate response by the administration to the ruling requires acting swiftly to bring needed clarity to employers and employees alike.

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