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House Votes to Shut Down NLRB
The House voted Friday to shut down the National Labor Relations Board, with one Republican congressman calling the board "worse than useless" since a recent appeals court ruling voided the recess appointments of two board members.
The bill, called the Preventing Greater Uncertainty in Labor-Management Relations Act, calls for the NLRB to stop activity until the Senate confirms new members or the U.S. Supreme Court rules on the constitutionality of President Barack Obamas appointments.
The House voted 218-209 to pass the bill, which will likely stall in the Democrat-controlled Senate. Under the bill, the board would also be prevented from enforcing any decision, rule or vote made after January 4, 2012, when President Barack Obama made the recess appointments.
Representative John Kline (R-Minn.) said that the U.S. Court of Appeals for the D.C. Circuit's decision in Noel Canning v NLRB in January means uncertainty for both employers and employees who depend on the board to enforce the law. He called the board "dysfunctional" and said all its decisions are now suspect.
"You cant go there and get a determination, or you get one that is immediately suspect and open to an appeal to a court that has already said it is unconstitutional," Kline said on the House floor before the vote. "Every time this board makes a decision, it pours more uncertainty into an economy that is still struggling to come out."
Democrats in the House emphatically disagreed with the bill in floor statements. Representative George Miller (D-Calif.) said the bill "effectively takes away every labor right Congress gave workers to better their lives." He said the bill works against both employers and employees who have no recourse against illegal firings or illegal strikes. "Both employers and employees are going to be hurt."
Representative Robert Andrews (D-N.J.) called the bill premature, since the government said it plans to ask the Supreme Court to overturn the D.C. Circuit decision and the petition is due April 25.
Republicans characterizing the appointments as unconstitutional after "a decision by one court of appeals" is "truly a novel theory," Andrews said on the House floor. "Only the Supreme Court has finality in these matters."
In response to the Democrats, Representative Luke Messer (R-Ind.) said that the bill would ensure the integrity of the NLRB, which now has 600 decisions by the board called into question and new decisions that are "ripe for legal challenge."
"The truth is it's the president's unconstitutional actions that have thrown this process into chaos," Messer said on the House floor.
Obama has struggled to fill the labor board, which requires three members to constitute a quorum. In January 2012, Obama appointed three peopleSharon Block, Terence Flynn and Richard Griffinto the NLRB via recess appointments. Republicans criticized the moves, saying that Obama unlawfully bypassed the advice-and-consent role of the U.S. Senate to review candidates for federal agency slots.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in January this year unanimously declared Obama's appointment of Block and Griffin to the NLRB unconstitutional (Flynn had previously resigned). The appeals court said the Senate was not officially in "the recess," as required by the Constitution.
In the D.C. Circuit, dozens of labor cases are on hold pending the resolution of the legal fight.
This article originally appeared as a post on The BLT: The Blog of LegalTimes.