Earlier today, a federal appeals court ruled that President Obama improperly appointed three members of the National Labor Relations Board in January 2012. The Court ruled that the Senate was “in session” rather than “in recess” when President Obama made the appointments, because the Senate held “pro forma sessions” – some lasting less than a minute – during their 20-day holiday break.
The Justice Department had reviewed the issue a year ago and determined that the recess appointments were constitutional. Similar cases are pending elsewhere in the country — and other appeals courts could rule differently.
NLRB Chairman Mark Gaston Pearce announced today that the Board “will continue to perform our statutory duties and issue decisions” until the question is finally resolved, most likely by the Supreme Court.
That’s probably not the short-term outcome expected by Senate Minority Leader Mitch McConnell and the 41 other GOP Senators who were part of today’s lawsuit.
Probably, those GOP Senators expected to simply put the NLRB out of business. Here’s how:
- In 2010, the Supreme Court ruled that the Board must have at least three members to act – voiding almost 600 decisions that had been issued by the NLRB during the 27 months it had only two members.
- The Senate GOP has used the filibuster to block President Obama’s nominations to the NLRB, both before and after that Supreme Court decision.
- If today’s appeals court ruling is upheld, then the NLRB will be left with only one Senate-confirmed member — and therefore without any authority to act. (That would also overturn the hundreds of NLRB decisions made since last January.)
What does that mean to the country, if the NLRB has no authority to act? Here’s how the Washington Post described this scenario, a year ago:
Workers illegally fired for union organizing won’t be reinstated with back pay. Employers will be able to get away with interfering with union elections. Perhaps most important, employers won’t have to recognize unions despite a majority vote by workers. Without the board to enforce labor law, most companies will not voluntarily deal with unions.
One more time: the NLRB can’t act unless it has at least three members. The GOP Senators in today’s lawsuit are trying to invalidate three of the current four members, reducing Board to only one member. And at last report, “GOP senators, including Graham and McConnell, had vowed to block confirmation of any new NLRB nominees.”
Think you’ve got union rights?
Read more about the GOP’s assault on labor rights in The Hill here.