The National Labor Relations Board (NLRB) announced this week that it would ask the U.S. Supreme Court to review a lower court ruling finding that President Obama’s recess appointments to the NLRB were unconstitutional.
The D.C. Circuit Court of Appeals reached the decision in Noel Canning v. NLRB on January 25. Business groups, arguing that the Senate was not in recess, challenged Obama’s appointments of three NLRB board members in January 2012, which he made while the Senate was holding pro forma sessions. The White House maintained that these pro forma sessions did not constitute the Senate being in session, since no significant work was taking place on the Senate floor at the time.
This decision has major implications for the NLRB because it must have at least three board members in order to lawfully conduct business. Despite the fact that several members of Congress have called for the NLRB to close its doors, the NLRB currently continues to operate, and the Obama administration contends the NLRB has not lost enforcement authority.
However, recent reports state that dozens of companies are seeking to void or block rulings by the NLRB in the wake of the court decision. The companies are attempting to overturn or block union elections and/or undo penalties they were ordered to pay for violating workers’ rights. The employer challenges will likely succeed in delaying NLRB actions while the Supreme Court decides whether to review the decision in coming weeks.
AFL-CIO President Richard Trumka has called for this uncertainty to be resolved saying, “The rights protected by this agency are too important for the agency to have to operate under a legal cloud.”
If the review request is accepted, the Supreme Court would not hear the case until its Fall 2013 term.