By John Logan, professor and director of Labor and Employment Studies, San Francisco State University
This extraordinary decision would have nullified decades of NLRB appointments. President Carter made the first recess appointment in 1980, when Republicans filibustered his nomination. Since then, five presidents have made 26 NLRB recess appointments. Only 3 of these appointments -- 1 by Bush I, 2 by Clinton – would be valid under the Noel Canning ruling. Twenty of the other 23 recess appointments were “intrasession appointments,” while the remaining 3 were intersession appointments to positions that became vacant prior to the recess in which the appointment was made. George W. Bush made the most NLRB recess appointments, 7, none of which were constitutional, according to the DC Circuit.
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. The DC Circuit apparently believes that the Board should not have conducted business for five-and-a half-years during the past three decades.
Even worse, the Court’s ruling would have invalidated hundreds of other recess appointments made by every President since Reagan. Since January 1981, 329 presidential intrasession recess appointments would be invalid, along with many of the 323 intersession appointments, depending on when the vacancy arose. Reagan made the most recess appointments, 232, including 72 intrasession appointments, followed by George W. Bush with 171 appointments, including 141 intrasession appointments. Obama has made the fewest number of appointments—32 recesses, including 26 intrasession appointments.
The ruling also means that it's open season on NLRB decisions from the past year. The D.C. Circuit vacated the Noel Canning decision because the Board lacked a legal quorum when it issued the order. But what about the Board’s other 222 decisions, such as the one protecting nonunion employees’ right to post about working conditions on Facebook? The Chamber of Commerce has advised that, while there are no time limits, employers should appeal unfavorable decisions from the past year to the D.C. Circuit “as quickly as possible” because other Federal Courts might uphold the recess appointments.
Several other appellate courts -- which will likely reach different conclusions from the D.C. Circuit -- are currently considering the recess appointments, with 1 case in the Second circuit, 3 in the Third Circuit, 4 in the Fourth Circuit, 1 in the Fifth Circuit, 1 in the Sixth Circuit, 2 in the Seventh Circuit, 1 in the Ninth Circuit, and 1 in the Eleventh Circuit. Even as they demand that recess-appointed members “pack their bags and go home,” moreover, Republicans have noticeably failed to defend the bizarre reasoning of the DC Circuit.
Despite this reticence, employers are being encouraged to disregard any future unfavorable Board decisions until constitutionality of the recess appointments is settled. Chamber President Thomas Donahue asks: “Can a company wait to see what happens… or must it comply with an NLRB order now?” He would almost certainly advise the former. Nor do employers need to wait until they get an unfavorable decision before complaining. “Aggrieved employers,” management law firm Littler Mendelson explains, should “object to the Board's authority to act at any stage of the process when necessary.”
Predictably, the GOP Congress is attempting to compound the current confusion and uncertainty. Republican senators have introduced bills that would prohibit the NLRB from enforcing decisions without a confirmed quorum and prevent the recess appointees from being paid. Senate Republicans will almost certainly prevent confirmation of new NLRB members, while House Republicans will launch further attacks on the Board.
The NLRB isn’t dead, but Republicans are trying to kill it. They have created uncertainty, and then demanded that the Board cease operating because of it. They have used a shocking legal ruling against the Board, without defending the Court’s bizarre reasoning. Unless the Administration stands up to this extremism, the answer to the title of this piece might be, “Chairman Kline in the Rayburn Building with the Noel Canning ruling.”
Logan is professor and director of Labor and Employment Studies at San Francisco State University.