Page 17 - ABC Indiana: The Hoosier Contractor, Spring 2013

The HOOSIER CONTRACTOR SPRING 2013 17
O n January 25, 2013, the United States Court of
Appeals for the D.C. Circuit held that President
Obama violated the United States Constitution when
he appointed members to the National Labor Relations
Board on January 4, 2012 while the Senate was in session
but without Senate confirmation. Although the decision
immediately affects only the unfair labor practice case that
challenged the recess appointments, Noel Canning v. NLRB,
the decision calls into question every decision rendered by
the Board in 2012, including several provocative decisions
made at the end of 2012.
In the Noel Canning case, an employer challenged a
February 8, 2012, Board decision, which held the employer
committed unfair labor practices. In challenging the adverse
decision, the employer argued the Board did not have the
necessary three-member quorum on the day it issued the
decision. Specifically, the employer argued that two of the
three Board members who made the decision were illegally
appointed on January 4, 2012 by President Obama through
temporary “recess” appointments, and they were not valid
members because the Senate was not actually in recess when
the appointments were made.
The Obama Administration, on the other hand, supported the
appointments by claiming the Senate was in fact recessed
at the time of the appointments, even though the Senate
was holding “pro forma” sessions. According to the Obama
Administration, the President has discretion to determine
when the Senate is and is not in session. The D.C. Circuit
Court of Appeals, however, saw the Administration’s
argument as an abuse of power, stating that “[permitting]
the President to decide when the Senate is in recess would
demolish the checks and balances inherent in the advice-
and-consent requirement, giving the President free rein to
appoint his desired nominees at any time he pleases, whether
that time be a weekend, lunch, or even when the Senate is
in session and he is merely displeased with its inaction. This
cannot be the law.” The court ruled President Obama’s three
appointments unconstitutional.
Although the Court overturned only the Board’s unfavorable
decision against Noel Canning, its decision leaves open a
huge question: If President Obama’s three appointments on
January 4, 2012 are unconstitutional, and if the Board needs
at least one of those three members to ever have a quorum,
are all the Board’s decisions for the past year invalid? At the
very least, the decision provides any employer who received
a negative decision by the Board in 2012 grounds to appeal
and potentially overturn the decision. Ultimately, the United
States Supreme Court will almost certainly be asked to render
a decision on the matter. If the Supreme Court upholds the
D.C. Circuit, or if it refuses to accept a request to decide the
matter, all of the Board’s decisions since January 4, 2012
may be overturned.
Controversial Decisions that May be Revisited
Due to Noel Canning v. NLRB
In April 2012, the Board issued rules designed to streamline
the union representation election process. The new rules have
two stated goals: (1) to lessen the time between the filing of
an election petition and an actual election and (2) to defer
important issues of voter eligibility until after elections. But
the real reason for a shorter election window is to increase
the chances of the chances of unions organizing employers.
A “quickie election” means that employers have less time to
conduct counter union organizing campaigns, which in turn
makes it more likely that a union seeking representation will
prevail. The rules have not yet gone into effect because of
a challenge by the U.S. Chamber of Commerce and other
employer groups claiming that the rules were adopted
National News
D.C. Circuit Court of Appeals Holds
President Obama’s NLRB Recess
Appointments Unconstitutional,
Calling Recent Controversial
Decisions into Question
by James H. Hanson and A. Jack Finklea1