On the same day that President Obama renominated two members of the National Labor Relations Board, members of the House Subcommittee on Health, Employment, Labor and Pensions in a hearing this morning disagreed sharply over the validity of the board's actions and its future mandate.
"The power of the board affects almost every private workplace," said subcommittee chairman David Roe (R-Tenn.) - power that is now called into question after the U.S. Court of Appeals for the D.C. Circuit last month ruled that the recess appointments of three board members were unconstitutional. If upheld, the court’s decision in Noel Canning v. NLRB leaves the board without a quorum.
“Any recent or future decision is constitutionally suspect and open to challenge in court,” Roe said. “Countless individuals are left in legal limbo and the rights of workers are hampered by a dysfunctional board. This is not what the law anticipates or what the American people deserve.”
Obama today sent the nominations of two of the recess appointees, Sharon Block and Richard Griffin Jr., both Democrats, to the U.S. Senate.
Rep. Robert Andrews (D- N.J.) urged the Senate to give the nominees an up-or-down vote. “We’d all be well-served by having a functioning board,” he said. “It’s not legitimate, not consistent with the Constitution to paralyze…an agency simply because you disagree with it.”
About 1,000 decisions by the board could be invalidated if the D.C. Circuit decision stands, as well rulemakings including new procedures for conducting union elections.
The NLRB has been here before — about 600 decisions were invalidated by the U.S. Supreme Court in 2010 because the board lacked a quorum. But those decisions “showed great restraint,” said Jones Day partner G. Roger King, testifying on behalf of the U.S. Chamber of Commerce, and were deliberately noncontroversial. “What this board has done is the complete opposite,” he said.
Proskauer partner Lawrence Lorber argued that the recess appointment board “has clearly and perhaps arrogantly refused to acknowledge its basic task, which is to administratively interpret the [National Labor Relations Act] in a manner consistent with the other equally compelling workplace mandates.”
For example, in a 2012 decision involving Banner Health Systems, the board ruled that the right of employees to engage in concerted activity meant that employers can’t have a blanket policy of keeping ongoing employee investigations confidential.
The problem is that such a standard conflicts with the U.S. Equal Employment Opportunity Commission, which “has long stated that confidentiality is a critical requirement in conducting investigations, particularly involving harassment,” he said.
Raymond LaJeunesse Jr., who is vice president and legal director of the National Right to Work Legal Defense Foundation, Inc., said he is advising clients in pending cases to make motions to disqualify the board from voting. The foundation has also petitioned the D.C. Circuit to order the NLRB to stop enforcing its 2012 decision in the Kent Hospital case, which allows unions to use dues to pay for certain lobbying activities even if members opted out of having their money used for political causes.
N. Elizabeth Reynolds, a partner at Allison, Slutsky & Kennedy who represents labor unions and workers, offered her own real-world example of the fallout from the D.C. Circuit decision.
The board found one of her clients was illegally fired for his union activities and ordered his employer to reinstate him with back wages. “It was a straightforward case,” she said. But now it’s on hold and the man “is working an entry-level job for a fraction of the earnings and has lost his house.”
She described the objections to the recess appointments as “a sustained series of attacks on the board by special interests who do not have the interests of American workers at heart.”
The witnesses disagreed whether it was appropriate for the board to continue to operate, given the D.C. Circuit’s holding.
Reynolds argued that the appointments are in fact legitimate and the board should carry on. “It’s like suggesting that the police should stop enforcing a law when one court found it unconstitutional and three courts held it was constitutional,” she said.
The government has yet to ask the U.S. Supreme Court to review the decision, but three other circuits — the Second, Ninth and Eleventh — have rejected constitutional challenges to recess appointments. “But the facts in each case were different,” said King. Still, he admitted “Three circuits have a different view of the recess appointment clause. This is ripe for certiorari today.”