Obama Recess Appointment Ruling Coming Soon

Court could overturn decisions made by board members if appointments found illegitimate

January 17, 2013

Labor insiders expect a federal appeals court to rule in the near future on a landmark case challenging President Barack Obama’s controversial recess appointments to the National Labor Relations Board.

The D.C. Circuit Court of Appeals heard oral arguments in December in Noel Canning v. NLRB. At issue is the legitimacy of three NLRB board members appointed by Obama while the Senate remained in pro-forma session in an attempt to block the president from making a recess appointments. Insiders expect the court to expedite the proceedings.

"Given the importance of this case, the decision should come out in the next month or two," said a source familiar with the case. "There is no way of knowing, but we suspect sooner rather than later."

Glenn Taubman, an attorney for the National Right to Work Legal Defense Foundation, said a negative ruling could send the board into chaos.

"If recess appointments are struck down, the board not only ceases to function going forward, but a whole raft of decisions they issued over the last year will be wiped out," he said. "It will be back to the drawing board for Obama—he’ll have submit new nominees and the Senate gets to advise and consent as the Constitution requires."

The Supreme Court ruled in 2010 that federal law "requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board."

The Chamber of Commerce, which filed an amicus brief challenging the constitutionality of the appointments, said the ruling had major consequences.

"For two years, the NLRB issued opinions it didn't have the legal authority to issue—about 600 of them—and then those had to all be invalidated," chamber attorney Sheldon Gilbert said. "That kind of unpredictability is bad for business."

Republican board member Brian Hayes, who was confirmed by the Senate in 2010, finished his term at the NLRB in December, leaving three Democrats on the board. Chairman Mark Pearce would be the only active member left on the board if the court were to revoke the January 2012 appointments of Democrats Richard Griffin and Sharon Block.

Obama sidestepped the traditional Senate confirmation to bring Griffin, a union attorney, and Block, a former top aide to the late-Sen. Ted Kennedy, onto the board quickly.

Conservatives have been critical of many of the decisions issued by the NLRB under the Democratic members. Recent board decisions have forced nonunion members to pay for union lobbying costs, compelled employers to continue funneling dues money to labor groups during negotiations, and restricted companies from firing workers who engage in unprofessional social media activity.

The NLRB can continue to operate its administrative activities such as overseeing union elections and investigating unfair labor practices even if the circuit court strikes down the appointments. Employers and unions at the center of such activity, however, will be unable to appeal such administrative decisions to the top level of the NLRB.

"Those appeals are going to stack up fast," Taubman said. "Given who Obama is going put up on the board, I’m just as happy to see the whole place shut down."

The Department of Justice contends that Obama acted within his authority under the recess appointment clause when he tapped Griffin, Block, and Republican Terrence Flynn for the board. Flynn left the board in May after admitting to leaking internal documents.

An NLRB spokeswoman declined to comment on the story, citing ongoing litigation.