WASHINGTON (PAI) — The National Labor Relations Board will continue to issue rulings enforcing the nation’s labor law, despite a Jan. 25 federal appeals court ruling saying Democratic President Barack Obama illegally appointed three of its members and thus that a case they ruled on should be thrown out.
The judges, all Republican appointees, also ruled the NLRB doesn’t have a quorum. Their decision, if it stands, tosses the agency into a legal limbo where it can’t decide worker-boss disputes because it lacks a majority to do so.
NLRB Chairman Mark Pearce responded that the judges’ ruling applies to just one case. The NLRB will consult with the Justice Department about whether and where to appeal the court ruling, but that decision “may be up to the Justice Department,” adds NLRB Communications Director Nancy Cleeland.
“The board respectfully disagrees with the decision and believes the president’s position in the matter will ultimately be upheld,” Pearce said. “This order applies to only one specific case, Noel Canning, and similar questions have been raised in more than a dozen cases pending in other courts of appeals.
“In the meantime, the board has important work to do,” he added. Unions, workers and companies “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.”
Union leaders backed the board’s stand that the recess appointments are legal, and that the board is acting legally. AFL-CIO President Richard Trumka said the court’s ruling is “radical.” Change To Win Chairman Joe Hansen called it “misguided.”
“The real issue here is the Senate’s inability to confirm qualified nominees,” Hansen added. “Senate Republicans, aided by a broken rules system, are carrying the water of big business and denying workers and unions a fair shake” by filibustering NLRB nominees, forcing Obama into recess appointments.
Both the Senate and House Republicans, as groups, filed friend of the court briefs on the side of the company and challenging the NLRB.
“The case itself pitted Noel Canning, a Coca Cola distributor, against the board. The NLRB said the firm broke labor law in declaring an impasse in 2010 bargaining with Teamsters Local 760, and wanted to enforce its bargaining order. But the basic case got lost in the constitutional issue of Obama’s recess appointments to the NLRB.
The firm, joined by House and Senate Republicans and business groups, argued the appointments were illegal, and the board didn’t have a quorum and thus could not decide the case. The 3-judge panel of the U.S. Circuit Court of Appeals for D.C. – the court that handles almost all federal agency cases – agreed.
The judges said Obama named three NLRB members, using his power to fill agency positions when the Senate is in recess, when it wasn’t in recess. The Senate had been meeting in 1-minute-or-less sessions at the time, every three days. That means it was technically not in recess, appellate Judge David Sentelle, a GOP appointee, wrote.
Thus, Obama’s appointments were not constitutional, the NLRB didn’t have a quorum and it could not decide the case, Sentelle added.
“Noel Canning asserts the board did not have a quorum for the conduct of business on the operative date, Feb. 8, 2012,” because three of its five members were Obama’s recess appointees. “We agree the appointments were constitutionally invalid and the board therefore lacked a quorum.”
Trumka believes higher courts will overturn Sentelle’s ruling.
“We strongly disagree with the court’s reasoning and decision. We fully expect this radical decision to be reversed, and that other courts addressing this issue will uphold the president’s recess appointment authority. In the meantime, the appointees to the National Labor Relations Board remain in their jobs and the NLRB remains open for business,” he added.
The National Consumers League also criticized the court’s ruling. Executive Director Sally Greenberg said the judges’ decision not only would disable the NLRB but also the Consumer Financial Protection Bureau, the watchdog over the big financial institutions that caused the Great Recession. Its director, Richard Cordray, is a recess appointee, too.
“With only three current seats filled on the five-member NLRB, and two of those seats filled with members appointed under the questioned recess appointments, the court is trying to shut down the cop on the beat charged with safeguarding employees’ rights to organize and addressing unfair labor practices,” Greenberg said.