Uncertainty surrounds NLRB in wake of Noel Canning

The validity of hundreds of NLRB decisions is now uncertain as the board's authority is under question and under attack.

Last month, a federal court ruled that the NLRB decision in the Noel Canning case was invalid because three board members were recess appointments. Those appointments were unconstitutional, the court ruled. Therefore the labor board didn't have the quorum required to make a valid decision in Noel Canning.

The court ruling broke decades of precedent and created enormous uncertainty. For example, 222 NLRB decisions over the past year are now up in the air. They include decisions favorable to workers involving social media, confidentiality and off-duty employee access.

Beyond that, rulings going back three decades may be invalid as dozens of NLRB members were recess appointments. John Logan, writing today in The Hill, explains:

This extraordinary decision would have nullified decades of NLRB appointments....Thus, the Board has operated “illegally” for long periods since 1980 by deciding cases when it lacked a quorum. The NLRB lacked 3 members or more valid members for 10 months during the Reagan administration, 5 months during Bush I, 14 months during Clinton, 22 months during Bush II, and 15 months thus far during the Obama administration. 

And it isn't just NLRB recess appointments. Media Matters calls the court decision "radical" and says it sets a precedent for blocking all kinds of agency decisions that protect consumers and workers:

...the U.S. Chamber of Commerce sees quite clearly the decision's potential to nullify consumer and labor protections it was unable to defeat legislatively ... Noel Canning (is important) to right-wing strategies to neutralize agencies such as the CFPB and NLRB, which are crucial curbs against corporate abuses. In the memo, the Chamber advises businesses to wield the decision as the means to ignore or challenge NLRB decisions, despite the fact that the decision itself is not yet in effect, will almost certainly be appealed, and only technically applies to the one disgruntled company that brought the lawsuit.

President Obama is in fact expected to appeal the Noel Canning decision to the U.S. Supreme Court. Attorney Patricia Trainor, writing for HR.BLR.com, explains what would happen if he were to lose:

If the Supreme Court upholds the ruling, the NLRB’s rulings over the last year would be invalidated and the NLRB itself would be effectively shut down until a sufficient number of appointments were approved by the Senate.

The NLRB said it will continue to function. But several corporations now say they'll defy the board. According to Poynter Spruill, a North Carolina law firm:

Prime Healthcare Services, which owns 21 hospitals in California, said it would not follow NLRB rulings mandating the collection of union dues after a collective bargaining agreement had expired or requiring employers to give unions certain materials relevant to internal investigations.  Prime Healthcare has said it is taking the position that all NLRB cases decided after the disputed recess appointments are invalid, even if they were not addressed in the Noel Canning case. 

Similarly, home builder D.R. Horton asked a federal appeals court to void another NLRB ruling on the basis that is was decided after the recess appointments and is, therefore, invalid. 

There are at least 14 other appeals court challenges to the NLRB's authority based on the questions about recess appointments. And in the U.S. Senate, anti-worker extremists filed bills attacking the board. Reports Mondaq.com.

The NLRB Freeze Act of 2013 (S. 180) introduced by Sen. John Barrasso (R-WY) would prevent the Board from enforcing rules, regulations and decisions issued since January 2012. Similarly, the Advice and Consent Restoration Act (S. 188) introduced by Sen. Roy Blunt (R-MO) would prevent the NLRB recess appointees from receiving salaries, as well as block the Board from taking any action until the appointees are legally confirmed....  

Sens. Mike Johanns (R-NE), Lamar Alexander (R-TN) and John Cornyn (R-TX) introduced the Restoring the Constitutional Balance of Power Act of 2013 (S. 190), a bill that would prohibit the NLRB... from enforcing or implementing decisions and regulations without a constitutionally confirmed Board or Director. 

Meanwhile, Obama asked Congress to reconfirm the two Democratic board members whose recess appointments the court invalidatedl. Steven Greenhouse at The New York Times writes,

Despite opposition from nearly all Senate Republicans, President Obama asked the Senate on Wednesday to confirm two Democrats whose recess appointments to the National Labor Relations Board were ruled unconstitutional by a federal appeals court last month. 

The two, Sharon Block, a former labor counsel to Senator Edward M. Kennedy, and Richard Griffin, former general counsel for the International Union of Operating Engineers, have been serving on the board since January 2012, appointed by the president during a Senate break after Republicans blocked their confirmations.

There might be a simpler answer to all this: amend the Civil Rights Act to include organizing a union as a basic civil right. Richard D. Kahlenberg and Moshe Z. Marvit explain why in The Nation:

...the (NLRB) penalties are so weak that employers routinely violate the law. Bosses see it as economically efficient to kill organizing drives by firing key leaders and scaring everyone else. They see paying the small penalties for breaking the law as a cost of doing business. 

That’s why we must extend the Civil Rights Act, which now bars discrimination based on race, sex, religion and national origin, to ban discrimination against individuals who are trying to form a union. Doing so would provide much tougher penalties than exist under the NLRA. The Civil Rights Act allows for a jury trial, the chance for compensatory and punitive damages, and the opportunity to engage in legal discovery. As a result, employers fear discrimination suits.