Authority of the NLRB In Question . . . Again

Last week, the federal Court of Appeals for the D.C. Circuit decided an appeal of an unfair labor practices case from the National Labor Relations Board (NLRB). (The case is Noel Canning v. NLRB.) The facts of the case are not complicated: An employer and a union had a dispute as to whether the two had reached an agreement, in their final negotiating session, about how much of a proposed pay raise would go into the pension fund. The employer claimed no agreement had been reached, and it rejected the union’s vote on the matter. The union claimed an agreement had been reached, and that the employer committed an unfair labor practice by refusing to treat it as a collective bargaining agreement.

As to those facts, the union won the appeal. But the rest of the opinion eclipsed the victory. The Court found that three of the NLRB’s five members were appointed in violation of the Constitution. If this interpretation is adopted by the Supreme Court, it means not only that the Board lacks a quorum and has no authority to do anything (the Supreme Court decided that two members won’t cut it in 2010); it probably also means the NLRB won’t have enough Board members to act any time soon — unless and until the Democrats get a filibuster-proof majority in the Senate.

Why? The Board has been extremely active in trying to enforce and expand employee rights of late — and one side of the Congressional aisle is not happy about it. As I’ve posted recently, the NRLB has made a recent priority of enforcing employee rights to speak to each other about the terms and conditions of employment, whether on social media sites or during workplace investigations that the employer would prefer to keep confidential. The NLRB also tried to issue a couple of regulations that would have benefited employees, one to require employers to post a notice of labor rights and the other to speed up union elections. Both regulations were stopped by lawsuits filed by pro-business groups. How do Congressional Republicans feel about the NLRB? Here’s John Boehner’s view: “The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs.” In fact, most of the Republican Senators and Speaker Boehner filed briefs in last week’s lawsuit, on the side of the employer.

Republican opposition to President Obama’s nominees to the Board led to the case last week. Presumably because he felt his nominees would be subjected to a filibuster (and therefore, not confirmed), the President appointed them pursuant to the recess appointments clause of the Constitution, which doesn’t require Senate confirmation. (This has become common practice by frustrated presidents of late, both Democrat and Republican.) However, the Court of Appeals found that the President’s appointments didn’t meet the constitutional requirements. First of all, the Court found that such appointments may be made only during “the” recess — in other words, the break between Senate sessions — not during any recess in Senate business. Because the President appointed his nominees during an “intrasession” recess, those appointments were not truly recess appointments. Second, the Court found that the recess appointment power may be used only to fill vacancies that arise during that same recess, which was not the case for the three seats the nominees were appointed to fill. This second requirement will limit the recess appointment power to near extinction.

This is one Court of Appeals’ opinion. Notably, the Board itself has said that it “respectfully disagrees” with the decision, and will continue to perform its duties. It will take a Supreme Court decision to decide the issue once and for all. But if the Court upholds this decision, recess appointments will be much less common. Which means nominees will get to their posts only if confirmed by the Senate, where filibusters and threats of same have held up even routine appointments. If you were thinking the change to the Senate filibuster rules would solve this problem, it won’t: Despite being called “filibuster reform,” those rules don’t do much to the filibuster. They speed up debate on lower-level nominees, but the debate has to start before it can gain steam — and the rules still require a cloture vote (60 votes or more) for that.