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JUNEAU: Court Says No To NLRB Recess Appointments


The National Labor Relations Board (board) is the federal agency responsible for ensuring the rights of employers and unions under the National Labor Relations Act (NLRA). President Obama appoints the board’s five members to five-year, staggered terms. However, as with the president’s cabinet and judicial appointments, the U.S. Senate must approve his board appointments.

Historically, presidents try to populate the board with individuals who share their labor/management philosophy. The intent of senatorial consent is to yield a fairer board composition to assure balance between the interests of business and organized labor. Historically, for the most part, that is how it worked.

It is no secret that President Obama is close to organized labor. Labor unions backed him heavily in both elections. While they did not always get what they wanted from his administration, they know he provided them a board with strong union leanings and ties. In his first term, the Obama board aggressively extended the scope of the NLRA in an effort to make union organizing easier. It issued a number of controversial decisions and rules that overturned decades of labor law precedent to enhance the ability of unions to increase membership.

This is very important to unions because they have been in decline for some time. During the last 30 years alone, they lost nearly 3.5 million members. The Bureau of Labor Statistics reported last month that union membership in the U.S. continued to drop and that nearly half of all union members now reside in just seven states; California, Illinois, Michigan, New Jersey, New York, Ohio and Pennsylvania. Michigan is a newly-minted Right-to-Work state and may not remain on that list much longer.

The business community believes that in expanding the NLRA through its rulemaking and decisions, the board exceeded the law and its authority. Businesses’ only recourse was to contest these overreaches before a federal court. Many of these suits also allege that the board itself is not legitimate because some of its members are serving in violation of the constitutional requirement for senatorial approval.

Currently, the board has only three of its five members, and the Senate confirmed only one of them. The business community perceives the other two as extremely pro-union and activist. So, the Senate attempted to make the president send it less biased nominees by refusing to confirm them. Instead, the president made them “recess appointments.” While the U.S. Constitution permits recess appointments when an office becomes vacant and the Senate is not in session, the president made these appointments when the Senate was conducting “pro forma” sessions every three days and was not actually in recess.

Last month, a U.S. District Court in Washington, D.C., ruled these appointments to be in violation of the U.S. Constitution. This could invalidate an entire year’s worth of board decisions because the NLRB did not meet the necessary legal quorum of three members for it to conduct hearings and issue decisions.

An appeal of this case to the U.S. Supreme Court is a virtual certainty. The board’s chairman defiantly declared that they would continue to conduct their work and issue decisions irrespective of the district court ruling. This comes as no great surprise, since the goal of this board is to gain as much ground for unions as it can. While a Supreme Court decision affirming the lower court would require the board to revisit hundreds of cases later, much can be done for unions in the meantime that will be difficult to undo.

Jim Patterson, Vice President of Government Relations, contributed to this column.


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