NLRB Appeals to Multiply

Court ruling opens the door for appeals in more than 200 decisions

January 30, 2013

Attorneys have been hard at work readying appeals to National Labor Relations Board rulings since a three-judge panel unanimously ruled in Noel Canning v. NLRB that President Barack Obama violated the constitution when he stacked the board with recess appointments while the Senate was still in session.

The court’s ruling does not invalidate every decision that the NLRB has made since Obama appointed Democrats Sharon Block and Richard Griffin in Jan. 2012, but it does boost the prospects of those seeking appeal.

The ruling raises questions of legal strategy moving forward. Geography plays an important role in typical court cases, as appellants are limited by jurisdiction. The NLRB, on the other hand, is a federal board, which automatically allows appellants to appeal to the D.C. Circuit. Forty percent of all NLRB appeals are filed in Washington, according to the National Right to Work Committee.

For example, the NLRB in December ordered Hispanics United of Buffalo (HUB), a non-profit advocacy group, to rehire five employees it had fired for trashing a manager on Facebook. The board, which settles labor disputes, ruled that social media activity constituted protected "water cooler" speech.

HUB’s attorney, Rafael Gomez, said the circuit court’s ruling has reinvigorated the appeal.

"We will be seeking an appeal of the NLRB decision and the D.C. Circuit has added another prong of what to our appeal," he said. "Every attorney in the country is consulting with their clients right now telling them that the NLRB made improper decisions because of the unconstitutional composition of the court."

Mark Mix, president of the National Right to Work Committee, said his organization is also preparing appeals to the board’s Geary decision, which allowed unions to charge non-members dues for political lobbying expenses.

"We’re busy trying to re-litigate," he said. "The courts have made clear that, no matter what, these decisions have to be done right."

David Phippen, a labor attorney at Constangy, Brooks, & Smith, expects the number of appeals to skyrocket.

"Anybody in their right mind who has an NLRB decision they don’t like will put it before the D.C. courts because of the precedent the circuit court has established," he said. "That one case doesn’t carte blanche make the recess appointments and their decisions invalid, but if you’re trying you want to be in D.C."

There are other legal avenues available. Gomez would not comment on where HUB would file its appeal but noted the long-term advantages that could come from venturing outside the perceived safety of Washington and into New York’s 2nd Circuit.

"This case is not binding in other circuits, but if you go forward and it’s upheld by other circuit courts, it will eventually get to the Supreme Court," he said. "Then it becomes the law of the land. All of these decisions will have to be re-litigated."

Congress established the NLRB to prevent labor disputes from clogging court dockets. The board has issued more than 200 formal decisions since Obama’s questionable appointments.

The Supreme Court has demonstrated a willingness to halt executive overreach. The court invalidated more than 600 NLRB rulings in the 2010 case New Process Steel v. NLRB because Obama allowed the board to operate with only two members. Three are needed to reach a quorum and make rulings.

The D.C. Circuit Court avoided throwing the NLRB into total chaos by placing a stay on its ruling, which will keep Block and Griffin on the board.

Republicans on Capitol Hill are calling on the members to step down. Sen. Mike Lee (R., Utah), who has hounded the administration about the appointments for the past year, is calling on the pair to resign.

"They should step down, but they’ve refused to do so," Lee spokesman Brian Phillips said. "It certainly puts a cloud over those judgments."

NLRB chairman Mark Gaston Pearce pledged to continue board operations on Friday.

"The board respectfully disagrees with today’s decision and believes that the president’s position in the matter will ultimately be upheld," he said in a statement. "In the meantime, the board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

Pearce has thus far followed through on that promise. The board released seven rulings after the appeals court decision was issued.

"This is prime fodder for the Supreme Court," Phippen said.

Published under: Big Labor , NLRB