Uncertainty Rules in Wake of NLRB Ruling

Feb 5, 2013

In an op-ed in Politico today, U.S. Chamber President and CEO Tom Donohue writes about the repercussions from the D.C. Circuit Court of Appeal’s ruling in favor of Noel Canning--a case the U.S. Chamber briefed, argued, and won--that President Obama’s recess appointments to the National Labor Relations Board (NLRB) were unconstitutional:

NLRB Chairman Mark Gaston Pearce issued a statement claiming that the decision “applies to only one specific case, Noel Canning,” and he informed affected parties that the NLRB would continue business as usual despite the ruling. And apparently the administration might dawdle instead of promptly pushing the case to the U.S. Supreme Court for review. This will exacerbate the uncertainty created by the administration with its reckless recess appointments.

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?

While the NLRB shrugs its shoulders and says, “So what?” the business community is asking, “Now what?” The administration knew full well that these controversial appointments would be challenged. Now, it must take some sensible steps to avoid adding to uncertainty and wasting time and money.

This uncertainty is playing out in Connecticut:

HealthBridge Management, an operator of nursing homes and rehabilitation hospitals, filed an application Monday asking Justice Ruth Bader Ginsburg to stay an order the NLRB obtained from a district court judge in December requiring the firm to rehire 700 employees involved in a labor dispute at several of the company's nursing homes in Connecticut. The application (posted here) cites the D.C. Circuit's ruling last month rejecting the recess appointments and argues that the rehiring order should be halted until the validity of the NLRB's authority to act is definitively resolved.

Ginsburg denied the application Monday afternoon, a court spokesman said. She offered no explanation for her decision.

HealthBridge, which has retained leading Supreme Court litigator Paul Clement, said through a spokesman late Monday that the firm plans to resubmit its stay application to Justice Antonin Scalia. He may be more receptive to some of the arguments Clement has marshaled.

With the legitimacy of their rulings in doubt, the NLRB shouldn't thumb its nose at the court and ignore the confusion that is already happening.

Donohue recommends that the Justice Department seek Supreme Court review of the case, the board refrain from taking major actions as the case goes through the courts, and that the government "find a fair and orderly way to process the claims of those who are adversely affected.”

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