The U.S. Court of Appeals for the D.C. Circuit issued a ruling last week that has tremendous impact on businesses and labor relations.
In Noel Canning v. NLRB, the appeals court invalidated President Obama’s appointment of three members to the National Labor Relations Board. The court held that the purported “recess” appointments, which led to a number of pro-union decisions, violated the U.S. Constitution because they were made when the Senate was not actually in recess, for vacancies that did not occur during the Senate’s recess.
This ruling now puts into doubt an array of recent NLRB decisions that many have called part of an activist agenda.
For example, the NLRB has broadly interpreted board law to now place significant restrictions on an employer’s right to prohibit its employees from disparaging their employer through social media. This is just one in a long list of decisions that have had a detrimental effect on business.
Although the NLRB has taken a defiant tone with respect to the appellate court decision, it should be very concerned about its future prospects.
The chief judge presiding on the opinion, Judge David B. Sentelle, was highly critical of the president’s interpretation regarding when recess appointments may be made. Historically, presidents from both parties have made appointments when the Senate has failed to act on nominations. Democrats made a point of blocking President George W. Bush’s appointments, and Republicans decided to return the favor for President Obama.
Rather than nominating NLRB candidates acceptable to a Senate controlled by the president’s own party, President Obama’s challenge to the blockade has now been determined unconstitutional.
So what’s next?
It looks like a long, protracted battle that could take a year or two until the U.S. Supreme Court either overturns the decision, allowing those appointments to stick, or upholds the decision, leaving the NLRB in need of new appointees.
And if the decision is upheld, another issue arises. In 2010, the Supreme Court in New Process Steel v. NLRB invalidated hundreds of decisions by the board because they were not decided with at least a three-member quorum.
If Obama’s recess appointments are invalid, then hundreds of NLRB decisions made by the recess appointees will similarly be invalidated. Unlike the situation following New Process Steel, however, there will be no current board that can rubber-stamp the decisions made by the invalidated board.
There is an alternative. President Obama can — and must — negotiate with the Senate to find candidates acceptable to a filibuster-proof majority.
Again, relying on history, the NLRB has always comprised three members of the administration’s party and two of the opposition. President Obama should take a leadership role by finding two Republicans and two Democrats that will be acceptable to the Senate, thus restoring functionality to the NLRB and stopping this process from dragging on indefinitely. There is vast number of qualified potential NLRB members; it is impossible to believe that there are not four qualified candidates worthy of bipartisan support.
And hopefully the NLRB will be more cautious when issuing decisions from a board that could be unconstitutional. Meanwhile, the president should follow the confines of the Constitution and properly appoint members to the NLRB. Unconstitutionally appointed individuals should not be determining law for the country.
As a nation we can only hope that excessive time and litigation do not paralyze the process and that leadership takes the right route.