Court cast 'dark cloud' over NLRB, House panel told
February 22, 2013
The Obama administration should ask the Supreme Court to rule on a federal appeals court decision invalidating the president’s three 2012 recess appointments to the National Labor Relations Board (NLRB), because the ruling has cast a “dark cloud” of uncertainty over the board, a witness for the U.S. Chamber of Commerce and Coalition for Democratic Workplace last week told a House panel. The AHA and its American Society of Healthcare Human Resources Association (ASHHRA) are members of the coalition.
The ruling also calls into question a previous recess NLRB appointment and the validity of regulations like the board’s controversial union election procedures, said Roger King, an attorney with the Jones Day law firm in Columbus, OH, and an ASHHRA member.
“Countless board actions are now of dubious validity, including decisions, rules, delegations of authority, official appointments and many other actions,” King told the Education and Workforce Subcommittee on Health, Employment, Labor and Pensions. “The issues in this case are clear and [the Supreme Court] should address them now, at the earliest available opportunity. A failure to do so only increases the uncertainty faced by all parties to board proceedings.”
In a unanimous decision, the U.S. Court of Appeals for the D.C. Circuit last month invalidated the Jan. 4, 2012 recess appointments of Democrats Sharon Block and Richard Griffin and Republican Terence Flynn.
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.
King testified at a Feb. 13 hearing on the impact of the court’s ruling. In his testimony, he took issue with NLRB Chairman Mark Pearce’s assertion that the ruling applies to only one case, Noel Canning v. NLRB.Pearce has said the board will press forward in deciding new cases.
“That policy is particularly illadvised when, as here, the unfavorable decision comes from the D.C. Circuit, which has jurisdiction over all petitions for reviewof board orders,” King told the subcommittee. “As a result, Noel Canning has a clear impact on virtually every decision taken by the board because any party adversely impacted by a board order can appeal to the D.C. Circuit, which will applyNoel Canningto invalidate quorumless actions.”
He also suggested that the president’s 2010 recess appointment of Craig Becker to the board would not be valid under the D.C. Circuit Court’s ruling. He said it calls into question the validity of the board’s rule to expedite union election procedures – adopted while Becker was an NLRB member.
The union election rule, issued in December 2011, was put on hold after a federal district judge declared it invalid, because theboard only had two members – Chairman Pearce and Becker – when the board voted on it. NLRB has appealed the ruling. The AHA opposes the NLRB rule, which would have sped up union elections and limited participation in pre-election hearings.
Meanwhile, subcommittee Chairman Phil Roe, R-TN, expressed concerns that recent board decisions have made it “increasingly difficult for employers to investigate possible misconduct and employee complaints,” citingBanner HealthandPiedmont Gardens,cases in which the board “restricted the ability to keep internal investigations confidential while allowing unions to obtain sensitive statements provided by witnesses.”