To eliminate uncertainty: The D.C. Circuit Court is for the NLRB the most important court in the land because any board decision can by statute be appealed to it. Consequently, when the D.C. Circuit Court holds that the board is without authority to act, but it continues to issue decisions anyway, enormous uncertainty is injected into the labor-management community. Should the employer or the union continue to incur the costs of litigating a case before the board? Should one side or the other compromise a principled position? If a board decision is issued must the employer or the union comply? Should the results of elections be appealed to the board or will doing so risk disrupting the workplace as a result of the cloud over the board’s authority?
Protecting the Senate’s role in the political appointment process: The bill sends a message that the Congress will take threats to the Senate’s role in the political appointment process seriously and stay the hand of recess appointees’ whose appointments are more likely than not unconstitutional.
The president does not have unilateral appointment authority; he shares that power with the Senate. Although the president has the authority to make recess appointments, it is a stop-gap measure intended to be exercised only when the Senate is in its recess and is therefore unable to consider appointments that are necessary to keep the government functioning.
President Obama’s three recess appointments to the NLRB tore at these constitutional limits. He made the appointments two and one-half weeks after their nominations, before the nominees’ paperwork had been submitted to the Senate for consideration and while the Senate was in continuing periodic session pursuant to a unanimously passed Senate resolution.
During oral argument, the D.C. Circuit Court judges asked the Department of Justice attorney this question: if the president can recess-appoint someone under these circumstances, what can prevent a president from recess appointing a nominee over lunch? The attorney had no quick answer.
As an example: The bill replaces the insolent behavior of the NLRB’s three-member board with congressional respect for a coordinate branch of government. Within hours of the court’s decision, the board’s chairman announced that he “disagree[d]” with the court and that the board intended to continue issuing decisions because they had “important work to do.” And only a few weeks ago, in an appellate brief, the board told the circuit court that its decision in Noel Canning was “profoundly mistaken” and that the circuit court should follow the Supreme Court’s decision in Noel Canning because it will reverse the circuit decision. Clearly, the three-member board needs to be brought down to size: requiring that it comply with the court’s decision will be a major step in that direction.
In a recent letter to Congress, the AFL-CIO Transportation Trades Department urged U.S. House members to vote against the bill in order to preserve the “orderly resolution of labor-management disputes.” Undeniably the president’s recess appointments have created a mess. But it is this House bill -- not the continued issuance of decisions of questionable legality and the attempted enforcement of prior ones -- that is best able to bring order to the labor-management community. And until the Supreme Court rules, the parties can resort to the sometimes forgotten practice of compromise and agreement.
The author of the AFL-CIO letter argued that the D.C. Circuit has adopted a narrow interpretation of the Recess Clause that is inconsistent with the practice of some modern presidents and a 1983 decision by the 11th Circuit. All that is true, but it does not invalidate the court’s decision which is rooted in the language and logic of the Constitution. And it is beside the point: it does not address the uncertainty created by the board that continues to exercise authority even though D.C. Circuit Court says it does not have it.
Schaumber is a former chairman of the National Labor Relations Board.