A ruling by a federal appellate court has effectively shut down the National Labor Relations Board for at least the next year while the Supreme Court fields appeals over whether the makeup of the agency’s commissioners rendered its decisions moot.
In Noel Canning vs. the National Labor Relations Board, a three-judge panel of the Washington, D.C., Circuit Court of Appeals ruled in January that two of President Barack Obama’s three appointments to the five-member NLRB were unconstitutional because they were made at a time when the Senate was in recess.
“The Noel Canning case is such a wonderful gift to employers because it effectively puts the NLRB out of business until the Supreme Court decides the matter — again, not likely to occur for at least a year,” said a labor relations attorney on the management side.
“Any employer who is aggrieved by a decision of the NLRB can appeal that decision to the D.C. Circuit,” he said. “It can safely be predicted that the D.C. Circuit will overrule any and all actions taken by the current NLRB because the D.C. Circuit has already ruled that the current NLRB lacks a quorum.”
For the White House and its allies in organized labor, this is devastating news. Next to its cherished “card check” — legislation to neuter the secret ballot in union elections — control of the NLRB was inarguably the major goal of the unions in an Obama administration.
The AFL-CIO-affiliated super PAC, Worker’s Voice, contributed an estimated $13 million to the Obama re-election coffers.
And with AFL-CIO President Richard Trumka claiming credit for unions putting Nevada, Ohio, and Wisconsin in the president’s column last fall, Obama has tried to make every appointment to the NLRB as pro-union as he could — except those required by law to go to the minority party.
All three of his current appointees — Sharon Block, Richard Griffin, and Mark Gaston Pearce — are past union lawyers.
In terms of rulings, labor has done well with the NLRB recently: No-solicitation rules for unions in the workplace were upended and the “Specialty Healthcare” ruling permitted unions to organize micro-units of an employer’s workforce.
In addition, there was the politically charged Boeing case, where the NLRB acting general counsel issued a complaint forcing the aircraft producer to be tried before an administrative law judge for building a plant in right-to-work South Carolina instead of union-friendly Washington state. The NLRB dropped its court case after the union that brought the suit settled with Boeing.
Two of the three board members were never confirmed by the Senate but were recess appointees who have since had the validity of their appointments voided in court. The term of the third, Chairman Pearce, will expire in August. This means the five-member board lacks a quorum and cannot do business.
At this writing, the White House has sent five nominations to the Senate: three Democratic nominees are the current members – Pearce, Griffin, and Block—and the two Republican nominees are Philip Miscimarra and Harry Johnson.
Although both Miscimarra and Johnson are considered balanced in terms of labor and business, it is virtually out of the question that this “bipartisan” package will be confirmed.
“Republican senators will not confirm Griffin and Block,” said the same labor relations lawyer, who requested anonymity. “Republicans view Griffin and Block as pretenders who wrongfully accepted invalid recess appointments, and they then used their invalid positions to take extreme positions on labor law. [Senate GOP Leader] Mitch McConnell is on record saying that Griffin and Block are unacceptable.”
The Supreme Court is not likely to address the Noel Canning case for at least a year. Until then, it appears as though the NLRB is out of business — and American business is happy.
John Gizzi is a special columnist for Newsmax.com
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