After Several Difficult Weeks, Obama Labor Board Seeks Relief

Recent weeks have not been kind to President Obama’s National Labor Relations Board. In the days since the historic ruling against the Board by the U.S. Court of Appeals for the D.C. Circuit, which found the “recess” appointments made by Obama to be unconstitutional, additional courts have rendered decisions that are unfavorable to the government agency, while America’s employers have undertaken efforts to stop or undo the NLRB’s rulings.

The U.S. Court of Appeals for the Fifth Circuit recently reversed the Board’s finding that an election conducted by employees of Arkema, Inc. decertifying the United Steelworkers of America’s collective bargaining unit was somehow tainted. In a 22-page decision, the court found that the NLRB’s unfair labor practice findings were unwarranted.

In addition, according to a recent news report in The Wall Street Journal, “[d]ozens of companies are seeking to void or block rulings by the National Labor Relations Board in the wake of a court decision that found President Barack Obama’s board appointments unconstitutional.” Corporations such as Starbucks Corp. and Time Warner Inc., among others have decided to cite the ruling by the D.C. Circuit Court in challenges: “Since the January ruling by the Washington, D.C., appeals court, at least 87 companies and three unions have cited the decision in cases at varying stages within the agency, including cases the board has yet to decide. Many companies are telling the agency that actions against them should be voided or blocked since the board or its appointed regional officers made decisions while the NLRB lacked authority. Dozens more companies are citing the recess appointments in appeals they’ve filed against the agency in federal appellate courts.”

It appears even union lawyers are questioning the legitimacy of the president’s unconstitutional recess appointees.

As these setbacks for the Obama Labor Board gain attention, Members of Congress are getting involved to a greater degree. Weeks ago, numerous U.S. Senators introduced various pieces of legislation addressing the NLRB, and just this past week, a member of the U.S. House did as well. Congressman Steve Womack introduced legislation which would stop the current Board from enforcing any rules, regulations or decisions the government agency has issued since January 2012.

In response, and somewhat predictably, the NLRB has sought to continue its work in favor of Big Labor and to the detriment of America’s employees and employers. When the D.C. Circuit found the president’s “recess” appointments to be unconstitutional, the Board responded that the federal agency would ignore the judgment reached by a co-equal branch of government with Chairman Mark Pearce writing, the NLRB “will continue to perform our statutory duties and issue decisions.” And now, they have taken the matter to the U.S. Supreme Court.

The NLRB – in conjunction with the U.S. Department of Justice – has filed a petition for certiorari asking the Supreme Court to review the ruling reached by the U.S. Court of Appeals for the D.C. Circuit. By taking this action, it appears likely the highest court in the nation will decide in the coming months whether the president has the authority to sidestep the Constitution and undo the U.S. Senate’s responsibility to confirm high-level federal officials.

Workers and small businesses have a lot at stake in this matter. For the sake of confidence in the business sector, meaningful protection of employee rights, and increased job creation and economic growth, all Americans should hope the Supreme Court agrees with the D.C Circuit that the president’s recess appointments “demolish[ed] the checks and balances inherent in the advice-and-consent requirement.”



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