An agreement reached on July 16, 2013, between Senate Democrats and Republicans to avoid filibuster reform should result in four new members of the National Labor Relations Board (NLRB) and the reappointment of its controversial chair, Mark Gaston Pearce. Concerned over lengthy delays with confirmation of seven of President Barack Obama’s nominees, including five appointments to the NLRB, Democrats threatened to use the so-called “nuclear option” on Senate rules, a change that would have drawn Republicans ire and stalled major legislation.
Articles Discussing The National Labor Relations Board (NLRB).
Executive Summary: In a 2-1 decision, the Third Circuit has held that the President’s recess appointment of Craig Becker to the National Labor Relations Board was invalid because he was not appointed during an intersession break of Congress as required by the Recess Appointments Clause. Accordingly, the court held that a three-member panel of the Board, which included Becker, could not exercise the Board’s authority, and the court vacated an unfair labor practice decision issued by the panel.
A three-judge panel of the D.C. Circuit Court of Appeals has held that President Obama’s recess appointment of three members to the National Labor Relations Board (NLRB) violated the U.S. Constitution. See Noel Canning v. NLRB, No. 12-1115 (January 25, 2013). While the NLRB likely will appeal this decision to the U.S. Supreme Court, if it stands, the decision could mean that hundreds of Board decisions issued over the last year are invalid.
On December 13, 2012, the Committee on Oversight and Government Reform of the U.S. House of Representatives issued a 33-page report accusing the National Labor Relations Board (NLRB or Board) of express pro-union bias, pursuing a program of aggressive tactics designed to promote union agendas, making substantive decisions without legal authority, violating its own ethical and procedural rules, and hostility to Congressional oversight. The report, titled “President Obama’s Pro-Union Board: The NLRB’s Metamorphosis from Independent Regulator to Dysfunctional Union Advocate,” can be accessed here. For employers that have been involved in cases brought before NLRB this year, the implications of this report could raise questions about those decisions or even cast them into doubt.