Yesterday, the House Education & Workforce Committee jumped into the fray over NLRB recess appointments. Some brief background: in December, President Obama appointed three new members to the NLRB. Given the acrimony over the NLRB for the last year, it was unlikely that the Senate would have confirmed the President’s nominees, so a “recess” appointment was the only option. But what concerned the House on Tuesday and, others since, is that when the President made the appointment, the Senate was not in recess, as that term has been traditionally defined. As a result, an interesting constitutional question now exists — can the President actually do this? Are the current NLRB Board members legitimate? The debate is reiminscient of the controversey a few years ago when the Board attempted to decide cases with only 2 members. The Supreme Court eventually ruled that the Board needed 3 members to act and invalidated thousands of NLRB decisions.
At the House hearing on Tuesday, Republicans argued that the President was running roughshod over the Constitution with his appointments. Some of the witnesses also questioned the precedence that the President set with this action. For sure, the President appointed NLRB members that are ideologically similiar to him, thus giving the NLRB a more pro-union bent. But what happens if/when a Republicans wins the Oval Office again? Many of the same people who are cheering the recess appointments now could be disappointed in the future.
One theme that emerged from the hearing is that the very complicated constitutional question involved means that employers are left with uncertainity — as pointed out above, are the Board decisions actually valid right now? That’s a good point, but I am not sure that employers should overthink this. After all, even when the Supreme Court invalidated NLRB decisions in New Process Steel, the vast majority of decisions were not controversial and were decided the same exact way with a full three member board. Thus, while many employers agree with the argument that the appointments are unconstitutional, it might not matter too much at the end of the day. It is more important that employers work with their lawyers and do their best to follow the law, not depend on exotic constitiutional arguments to escape thorny NLRB issues.