Contributed by Samantha Esmond
On April 12, 2013, the United States House of Representatives voted to approve a bill called “Preventing Greater Uncertainty in Labor-Management Relations Act” (H.R. 1120). The bill was sponsored by Representative Phil Roe (R-TN). According to Roe, “President Obama’s so-called recess appointments left the board in a state of legal chaos and my bill will ensure the NLRB cannot continue with business as usual until new members are confirmed and the nomination process returns to regular order.”
This bill would prevent the National Labor Relations Board (“NLRB”) from taking any actions that require a three-member quorum until the Board has at least three Senate-confirmed members or until the United States Supreme Court resolves the constitutionality of President Obama’s recess appointments. Moreover, this bill seeks to prohibit the NLRB from enforcing any action taken after January 4, 2012 that required a quorum.
On January 4, 2012, while the Senate was away during a 20-day holiday period, President Obama appointed three members to the five-member Board. As we previously blogged on January 25, 2013, President Obama’s recess appointments to the NLRB were held unconstitutional by the Court of Appeals for the District of Columbia.
While experts agree that the legislation is not anticipated to win approval in the Democratic-controlled Senate and the President’s senior advisors have implied that if the President is faced with legislation undermining the functions of the NLRB that they would recommend he use his veto power, this bill demonstrates the need for prompt clarification and/or a final determination on President Obama’s actions. If the Supreme Court rules that the President’s recess appointments were in fact unconstitutional, then hundreds of Board decisions dating back to January 4, 2012 will be invalidated.
Bottom Line: What does this mean for employers? Until this appeals process is concluded, employers must remain alert of all NLRB decisions and remain vigilant in reviewing policies and practices to ensure compliance – just in case. That being said, for the time being it is still legally uncertain whether the President’s NLRB recess appointments and/or the Board’s subsequent decisions will be held valid. Stay tuned….