The Supreme Court’s rebuke Thursday of President Obama’s appointments to the National Labor Relations Board has thrown hundreds of decisions made while the agency was unconstitutionally constructed into doubt. [READ SUPREME COURT’S RULING.]
Having to revisit those verdicts could draw the labor board away from its agenda, to the delight of Republicans and business groups who have assailed it as a tool of Democrats and big unions, especially under the current administration.
The NLRB is now scrambling to determine what is required following the finding that the board contained members whose appointments exceeded presidential authority under the Constitution’s Recess Appointment Clause.
“We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated,” board chairman Mark Gaston Pearce said late Thursday, stressing that the five-member board has a full complement of Senate-confirmed members.
“The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible,” Gaston said.
The board’s critics, meanwhile, rejoiced at the court’s unanimous holding.
Congressional Republicans seized on the ruling as validation of their relentless accusations that Obama has regularly overstepped his authority.
Industry groups said that it should invalidate all actions taken by the board between January of 2012, when the appointments were made, and August 2013, when the Senate approved new board members.
“We are confident the NLRB will handle the pending cases impacted by [the Supreme Court decision] efficiently and expeditiously,” he said.
But others believe that the ruling could prove a major diversion for the board in the waning years of the Obama administration.
“It’s going to force the board to look backwards at a time that it wants to move forward,” said Michael Lotito, an employment and labor attorney and co-chairman of Littler Mendelson’s Workplace Policy Institute.
That’s exactly what business interests and their allies in Washington are banking on.
For instance, one official from the International Franchise Association said the NLRB could be so busy reissuing decisions from old cases that it would not have time to move forward with the so-called quickie election rule, which would speed up union elections to as little as 10 days from the time they file a petition with the agency.
“Hopefully, they’ll be [so] overstretched with reviewing all the cases from 2012 and 2013 that they won’t necessarily have time to issue that rule,” the official said.
Former NLRB Republican board member Brian Hayes said the board went through a similar experience when he was first appointed in June 2010.
In New Process Steel v. NLRB, the Supreme Court had struck down hundreds of cases decided by just two board members, because they lacked a quorum. So the new board members, including Hayes, had to give those cases another look and issue new decisions, which took months, he said.
But this time around it could take even longer.
In the New Process Steel decision, most of those cases were easy to agree on, because they were decided by a panel of one Republican and one Democrat, so they only went after the “low-hanging fruit” that they could both agree on, Hayes said.
But with the Noel Canning decision, the Supreme Court is overturning hundreds of cases, including some that were much more controversial, he said.
“This needs to be their absolute top priority,” Hayes added.
Marshall Babson, a Republican and former board member, argued that the focus on so many old cases could distract the board from what he and other conservatives see as a pro-labor agenda.
“It’s going to be a lot more work for the NLRB, which will interfere with their ability to decide their present agenda,” Babson said.
The NLRB is also considering a case that will determine whether employees have the right to use their work email accounts for union organizing purposes, and another that would determine whether restaurants can be sued by the employees of one of its franchisees.
Adding more fuel to the fire, Democrat board member Nancy Schiffer’s term runs out in December. President Obama may find it even more difficult to appoint another Democrat to fill her seat after the Supreme Court’s ruling.
The current NLRB will face pressure to issue new decisions in these cases before the Democrats lose that majority at the end of the year, Babson argued.