The NLRB Fight Heats Up

Mar 18, 2013

The fight over the constitutionality of the National Labor Relations Board’s (NLRB’s) controversial recess appointments is heating up, and it could go all the way to the Supreme Court.

It started when the president recess appointed Sharon Block, Terence Flynn, and Richard Griffin to the NLRB on January 4, 2012—when the Senate was not actually in recess.

So the U.S. Chamber of Commerce took action. In support of its member, the Noel Canning Corporation, the Chamber briefed, argued, and won the challenge to the recess appointments in the U.S. Court of Appeals for the D.C. Circuit. The federal court held that the recess appointments were unconstitutional. Consequently, the board lacks the quorum it needs to conduct business. The decision calls into doubt more than a thousand recent rulings by the board.

In the aftermath of the court decision, the business community wants to know what’s next. 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?

Clarity could be on the way. Finally heeding calls by the business community to address the issue soon, the NLRB announced last week that it will seek U.S. Supreme Court review of the decision. This is an important step toward resolving the tremendous confusion created by the controversial recess appointments.

In the meantime, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future. 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.

The Chamber will continue to stand by Noel Canning as the case proceeds. Our preference is always to work within the legislative and regulatory processes to protect the interests of job creators and employers. But when the administration oversteps its bounds, when it tramples the rights of businesses and individuals, when it seeks to bypass other branches of government, we’ll take the fight to the courts. And we’ve got a pretty good record of winning.

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