A few weeks ago, I wrote about an important  10 (j) case in federal court in New York where the Defendant was challenging (1) the constitutionality of Obama’s recess appointments; (2) the Labor Board’s ability to delegate 10 (j) authority to the General Counsel’s office; and (3) if such a delegation survives once the Board’s membership falls below a quorum.

In a decision handed down this week, the NLRB prevailed, on all three counts.

First, the 10 (j) questions.   The Court looked to the plain meaning of the text and legislative history of the Act to find that the Board could delegate 10 (j) authority to the General Counsel.   Next, the Court found that the delegation of 10 (j) authority survives even if the Board’s quorum drops below the required number (3).   The Court distinguished that situation from the one that the Supreme Court faced in New Process Steel where the Board attempted to “perpetuate” its existence with 2 members.   The Court held that in delegating 10 (j) authority, the Board is not “perpetuating” any existence and is only delegating prosecutorial functions to the General Counsel.  This holding is consistent with cases from other Circuits — in fact, as Brennan Bolt at Labor Relations Today points out, the Supreme Court just rejected cert this week in a similiar case from the Ninth Circuit.  The only Circuit that has held to the contrary is the DC Circuit.

The last point — and the juicest of the three — was the constitutional issue of the President’s recess appointments.   Here, the Court declined to make any “pronouncements” because it found the constitutional issue did not change the outcome either way.  As the Court put it:

This is so because there are only two possible answers to the constitutional question and each answer leads to the conclusion that the § 10 (j) petition was validly brought. If the recess appointments were constitutional and the Board has a duly-constituted quorum, then the delegation to the General Counsel is presently inoperative and the Board itself had statutory authority to approve the instant petition.

If, on the other hand, the recess appointments were unconstitutional, then the Board lacks a quorum and the delegation to the General Counsel is operative. Since petitioner received authorization to initiate this § 10 (j) action from both the Board and the General Counsel, pursuant to the N.L.R.B. ‘s ordinary practice,4 one of these approvals must have been valid regardless of whether the President’s appointments to the Board were constitutional.

As I stated earlier, many employers cried foul over the recess appointments as a matter of principle.   There still might be merit to that argument, but it’s a complex question and will take time for the Courts to sort out — if ever.  As this case demonstrates, no employer should make any business decision on the hope that the recess appointments will be declared unconstitutional.