On the same day that President Obama renominated two members of the National Labor Relations Board, members of the House Subcommittee on Health, Employment, Labor and Pensions in a hearing this morning disagreed sharply over the validity of the board's actions and its future mandate.
"The power of the board affects almost every private workplace," said subcommittee chairman David Roe (R-Tenn.)—power that is now called into question after the U.S. Court of Appeals for the D.C. Circuit last month ruled that the recess appointments of three board members were unconstitutional. If upheld, the court’s decision in Noel Canning v. NLRB leaves the board without a quorum.
“Any recent or future decision is constitutionally suspect and open to challenge in court,” Roe said. “Countless individuals are left in legal limbo and the rights of workers are hampered by a dysfunctional board. This is not what the law anticipates or what the American people deserve.”
Obama today sent the nominations of two of the recess appointees, Sharon Block and Richard Griffin Jr., both Democrats, to the U.S. Senate.
Rep. Robert Andrews (D- N.J.) urged the Senate to give the nominees an up-or-down vote. “We’d all be well-served by having a functioning board,” he said. “It’s not legitimate, not consistent with the Constitution to paralyze…an agency simply because you disagree with it.”
About 1,000 decisions by the board could be invalidated if the D.C. Circuit decision stands, as well rulemakings including new procedures for conducting union elections.
The NLRB has been here before—about 600 decisions were invalidated by the U.S. Supreme Court in 2010 because the board lacked a quorum. But those decisions “showed great restraint,” said Jones Day partner G. Roger King, testifying on behalf of the U.S. Chamber of Commerce, and were deliberately noncontroversial. “What this board has done is the complete opposite,” he said.
Proskauer partner Lawrence Lorber argued that the recess appointment board “has clearly and perhaps arrogantly refused to acknowledge its basic task, which is to administratively interpret the [National Labor Relations Act] in a manner consistent with the other equally compelling workplace mandates.”
For example, in a 2012 decision involving Banner Health Systems, the board ruled that the right of employees to engage in concerted activity meant that employers can’t have a blanket policy of keeping ongoing employee investigations confidential.
The problem is that such a standard conflicts with the U.S. Equal Employment Opportunity Commission, which “has long stated that confidentiality is a critical requirement in conducting investigations, particularly involving harassment,” he said.
