House leaders urge NLRB action

by Chris Dickerson |
Feb. 21, 2013, 2:55pm

WASHINGTON (Legal Newsline) -- Congressional leaders have asked President Obama and the chairman of the National Labor Relations Board to take action in wake of a recent court ruling.

In letters sent Feb. 13, the leaders asked Obama to nominate "four qualified individuals" to the NLRB immediately and asked NLRB Chairman Mark Pearce to have the board "immediately cease all activity" until appointments are confirmed.

On Jan. 25, the D.C. Circuit Court of Appeals granted the petition of Noel Canning against the NLRB on the basis that the Board lacked a sufficient quorum of members when it reached a decision regarding Noel Canning. That was based on the fact that Obama appointed three of the NLRB's five members without Senate confirmation on Jan. 4, 2012, with recess appointments. But Noel Canning argued that the Senate was in pro forma session, making Obama's appointments invalid.

"Until a constitutionally appointed board is seated, uncertainty will reign in labor-management relations to the determent of America's workers, employers and unions," the leaders wrote in the letter to Obama. "Your immediate action is necessary to restore faith in the board and the Constitution's appointment process."

The letters were signed by House Speaker John Boehner, House Majority Leader Eric Cantor, House Majority Whip Kevin McCarthy, Republican Conference Chairwoman Cathy McMorris Rodgers, Education and the Workforce Committee Chairman John Kline and Health, Employment, Labor and Pensions Subcommittee Chairman David P. Roe.

In the letter to Pearce, the House leaders urged him to realize any NLRB ruling will be in doubt.

"Only three things are certain if the current Board continues to issue decisions," they wrote. "Those decisions cannot be relied upon, every losing party will be justified in filing an appeal, and no prevailing party can be assured they will ever benefit from any Board-ordered remedy. This uncertainty is not what the law anticipates and cannot be permitted."

The case arose out of a dispute between Noel Canning, a Washington state Pepsi-Cola bottler and distributor, and Teamsters Local 760. The dispute concerned the negotiation of a collective bargaining agreement. After coming to an impasse, the NLRB made a ruling which Noel Canning considered unfavorable to it. Noel Canning filed an appeal to the D.C. Circuit on both statutory and constitutional grounds.

The three-judge panel of Chief Judge David B. Sentelle and Judges Karen LeCraft Henderson and Thomas B. Griffith was unanimous. The panel said the appointments of Richard Griffin, Sharon Block and Terrence Flynn were "constitutionally invalid," thus deciding the NLRB did not have a "quorum for the conduct of business."

The House leaders' letters in many ways mirror the testimony of Charleston, W.Va., attorney Mark Carter who told the House Oversight Committee in 2012 that if the Noel Canning ruling did come to fruition, "every administrative decision and every administrative rule or regulation implemented by the National Labor Relations Board will be subject to appeal or attack."

"The actions of the NLRB will be ultra vires," Carter testified, adding that every decision and regulation would be subject to attack. Because the NLRB has been active both in decision-making and regulatory action in the past year, the decisions of the agency since Jan. 4, 2012, may have no mandatory impact on employers, unions or employees if the decision of the D.C. Circuit is upheld.

Carter, the Labor Group Practice chair for Dinsmore in the firm's Charleston office, served in the President George. W. Bush administration from 2002 to 2009 on the Federal Service Impasses Panel. In that job, he and six others resolved collective bargaining impasses between unions representing federal employees and the agencies of the United States. His practice focuses on the traditional labor practice before the NLRB, federal and state court litigation involving unions and collective bargaining.

Last month, Carter said the D.C. Court's ruling is "incredibly important."

"The NLRB has jurisdiction to resolve many disputes between unions or employees with employers," he said. "When President Obama appointed those three members, the Senate was in pro forma session. The administration, in recent press, has called that a sham. But less than two weeks before these appointments, the Senate was in pro forma session and passed the Social Security Tax Relief. So if they can pass legislation during such a session, it isn't a sham."

Carter said the ruling essentially says the NLRB doesn't have the power to do what they're doing.

"It creates confusion," he said. "It creates chaos. But the NLRB has taken the position that it disagrees with the decision and will continue to perform its duties."

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