Another NLRB recess appointment, validity of union election rule is disputed
February 8, 2013
Following a recent federal appeals court ruling invalidating President Obama’s three recess appointments to the National Labor Relations Board (NLRB) in January 2012, the Coalition for a Democratic Workplace has asked the court to also invalidate the 2010 recess appointment of Craig Becker and the board’s controversial final rule for an expedited union election process. The AHA is a member of the coalition and has been a strong critic of the rule, but is not involved in any litigation on the recess appointments.
In a Jan. 30 filing with the U.S. Court of Appeals for the D.C. Circuit, the coalition challenged the rule that the board issued on Dec.
16, 2011 to streamline the union election process. The union election rule was not issued under the current board that was rocked by the appeals court’s Jan. 25 decision. Given the ruling on the president’s 2012 recess appointments, the coalition contends that Becker’s recess appointment also was illegitimate and thus the board lacked an appropriate quorum to issue the union election rule.
The president appointed Becker to the board on Aug. 27, 2010.
He left the board at the end of 2011 – but not before voting for the union election rule. The coalition has argued that the rule creates an environment that would favor unions and rush to hold elections without ensuring that employees have enough information to make informed choices.
The coalition’s recent action – part of its ongoing court challenge of the union election rule – came on the heels of the ruling from the D.C. Circuit Court that invalidated the Jan. 4, 2012 recess appointments of Democrats Sharon Block and Richard Griffin and Republican Terence Flynn. In a unanimous decision, the three-judge panel said the president’s appointments were invalid because they were not made during a true congressional recess. The court held that the president can only make recess appointments for vacancies that arise during an official recess, which it defined as the break between sessions of Congress.
“Either the Senate is in session, or it is in recess,” Chief Judge David Sentelle wrote. “If it has broken for three days within an ongoing session,” then the Senate is not in recess. For more on the court’s decision, click on: http://tinyurl.com/b5mwmhu.
What comes next for NLRB depends on how the administration responds to the ruling. NLRB Chairman Mark Pearce has said the board will continue to press forward in deciding new cases.
He noted that the court’s ruling applied to only one case, Noel Canning v NLRB.
But every NLRB decision reached since last January involved at least one board member who was recess appointed, note AHA outside counsel Roger King and Curt Kirschner of the Jones Day law firm. Kirschner has represented the AHA and its American Society for Healthcare Human Resources Administration (ASHHRA) affiliate on employerrelated issues before NLRB, and King is an ASHHRA member.
They also believe the coalition is on solid ground in seeking to invalidate Becker’s term on the board. “This issue implicates more decisions going back more than a year,” says Kirschner, who testified on behalf of the AHA and ASHHRA at a July 18, 2011 NLRB hearing on its proposed union election regulations.
“Under the court’s decision [Becker’s] recess appointment would not have been valid.”
At the least, King and Kirschner say the D.C. Circuit Court’s ruling calls into question any decision issued by the board during the past year, as well as its authority to issue decisions moving forward. For that reason, they believe the administration will need to appeal the decision – either by seeking a so-called en banc review by a larger panel of circuit judges or by asking the U.S. Supreme Court to take up the matter.
If the D.C. Circuit Court’s ruling stands, it could invalidate all NLRB decisions made since the appointees joined the board. In the near-term, the ruling might be used to undo more than 200 decisions made over the past year by the NLRB.
Federal appeals courts can contradict each other’s rulings so the impact of the ruling by the D.C. Circuit Court depends on where the board’s decisions are being challenged. But King said the board would be “ill advised” to ignore the ruling’s broader implications because organizations will be encouraged to take their appeals to the D.C. Circuit Court, regardless of where they originated.
“The administration should not delay and appeal to the Supreme Court or it can risk doing irreparable harm to the board,” says King, adding that organizations could cite the court’s ruling in Noel Canning to appeal decisions made by NLRB regional directors and administrative law judges.
If the administration appeals the court’s decision in Noel Canning to the Supreme Court and loses, it would mean all the board’s decisions since at least January 2012 are invalid. Every court would have to recognize that the rulings were made by a board that lacked proper constitutional authority. It would also prevent the board from making further rulings until the president appointed at least two new members and the Senate confirmed them.
If the Supreme Court overturned this month’s ruling by the D.C. Circuit Court, the board’s decisions would stand and the members appointed during the Senate break could continue to serve.