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The National Labor Relations Board: A Pawn In A Political Chess Game
By T. Christopher Bailey on March 15, 2013 at 6:00 PM

chess piecesOn January 25, 2013, the US Circuit Court of Appeals for the D.C. Circuit (Noel Canning v. NLRB) invalidated President Obama’s appointment of Sharon Block, Terence Flynn and Richard Griffin to the National Labor Relations Board based on the court’s conclusion that the three “recess” appointments failed to meet the requirements of the US Constitution. This decision calls into question over a year’s worth of Board decisions as well as the Board’s authority to act at present and for the indefinite future; however, NLRB Chairman Pearce indicated that the agency would take a “business as usual” approach until all appeals were exhausted. On March 12, the Administration announced that it would seek US Supreme Court review of the Noel Canning decision.

In response to the NLRB Chairman’s response to Noel Canning, and the Administration’s decision to seek Supreme Court review, congressional members in both branches of Congress initiated action purportedly designed to halt or limit current NLRB action. On March 20, The House Committee on Education and the Workforce passed a bill sponsored by House Health, Education, Labor and Pensions Committee Chair Phil Roe (R-Tenn.) that would require the NLRB to cease all enforcement activity until Noel Canning is fully resolved or NLRB members are properly appointed (H.R. 1120). On March 21, Sen. Lamar Alexander, the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, submitted a budget amendment to eliminate NLRB funding targeted for the enforcement of decisions or regulations issued by the NLRB “whose quorum was constituted by invalid recess appointment.” (S. Amdt. 349).

Though these actions appear serious on the surface, they are of little practical consequence. Although Republicans hold a majority in the House, it is unlikely the House Bill, or the amendment proposed by Senator Alexander will gain any traction in a Democrat-controlled Senate. Further, given the Administration’s decision to challenge the DC Circuit’s ruling, it is even less likely that any such bill would survive the President’s desk. Political posturing aside, expect the NLRB to continue to render decisions, and seek enforcement of its decisions and regulations.

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