U.S. Chamber Joins Challenge to NLRB Appointments

Says Dubious Appointments Have Further Eroded NLRB’s Credibility

WASHINGTON, D.C.—The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) today moved for leave to intervene in a lawsuit to challenge the authority of the National Labor Relations Board (NLRB) to adjudicate charges absent a three-member quorum. The Chamber and CDW seek a swift and decisive ruling whether the president’s dubious recess appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB unlawfully circumvented the Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. The case, Noel Canning v. National Labor Relations Board, is before the U.S. Court of Appeals for the D.C. Circuit.

“Appointing three of five members to the NLRB in a legally questionable way casts doubt on the work of the entire agency,” said Thomas J. Donohue, president and CEO of the Chamber. “We cautioned in January that shoehorning these nominees into office in this controversial way would throw the legal validity of every decision of the Board into question.  Our concern has now become a reality. We are simply asking the courts to sort out the question of the NLRB’s authority quickly, so that employers and employees alike can have predictability and certainty.”

Noel Canning, a small business operating in Washington state, appealed a ruling by the NLRB that the company had violated the National Labor Relations Act (NLRA). The Chamber’s public policy law firm, the National Chamber Litigation Center, filed a motion on behalf of the Chamber for leave to intervene in the case in support of Noel Canning. The Chamber seeks to argue that the three attempted recess appointments were not legally effective because the President made them when the Senate was in session, not in recess. Accordingly, the Board lacks the statutorily required quorum of at least three members to adjudicate disputes and issue rules.

“Allowing the Board to act when it may not have a quorum adds even more uncertainty to our economic climate,” continued Donohue. “That is why we are looking to join a small business lawsuit to challenge these appointments—we want the authority of the Board clarified. Employers and employees need to know what it means when the NLRB orders an employer to bargain with a union, to modify its compensation and benefit plans, or to cease contracting work—to offer just a few examples.  Is the order legally rendered, or will it be invalidated in the future?  Without this kind of certainty, we cannot foster an environment that will lead to economic growth and job creation.”

The Chamber’s motion for leave to intervene is available here: http://www.chamberlitigation.com/noel-canning-v-national-labor-relations-board

Obama Defies Lawmakers with Recess Appointments to Labor Board

The following was gleaned from an article published by The Hill.

Obama defies lawmakers with recess appointments to labor board

January 5, 2012

The Hill

President Obama will recess-appoint his nominees to the National Labor Relations Board (NLRB), bypassing a likely filibuster from Senate Republicans to keep the controversial agency operating in 2012.

The president will use recess appointments to install Sharon Block, Richard Griffin and Terence Flynn as NLRB members. Block and Griffin are Democrats, while Flynn is a Republican.

The NLRB announcement came a few hours after the president made a public show of another recess appointment, for Richard Cordray, the new director of the Consumer Financial Protection Bureau. Republicans reacted with fury to that appointment, which the White House promptly ignored by making three more. 

Senate Minority Leader Mitch McConnell (R-Ky.) blasted the president’s decision and said he is stripping the Senate of its oversight powers, since the NLRB nominees had not been vetted in a hearing.

The NLRB appointments are a huge victory for Obama’s union allies, which urged the president to use any means necessary to keep the NLRB functioning. Without additional members, the NLRB would have lacked the three-member quorum needed to issue rules and regulations.

Unions had been frustrated by the president’s moves on trade and regulations in 2011, and the NLRB appointments could help wipe the slate clean ahead of the 2012 campaign.

But the move also puts Obama at odds with business, which has clashed repeatedly with the NLRB in recent months. Bruce Josten, the chief lobbyist for the U.S. Chamber of Commerce, denounced the recess appointments as political favoritism and said they will “further poison the well” at the labor board. 

The president is wading into uncharted waters with the appointments, made while the Senate is holding pro forma sessions. Dave Hirschmann, a top official with the Chamber, said a court battle over the constitutionality of Obama’s action is a near certainty.

The GOP’s blockade of NLRB nominees would have prevented it from issuing rules and regulations, since it needs at least three members to form a quorum. The recess appointment of Craig Becker expired Tuesday, leaving the NLRB with only two members.

With Block, Flynn and Griffin now members of the NLRB, the labor board is up to its full roster of five members.

Republicans tried to prevent recess appointments by keeping the Senate in pro forma session over the holiday break, but the White House said that maneuver is meaningless.

Lawyers for several business groups immediately began to explore their legal options to challenge the recess appointments.