NLRB Paralyzed by Congressional Gridlock

The determination of Congressional Republicans to thwart all actions initiated by President Obama appears to have resulted in a shutdown of the machinery used to enforce federal labor laws. By refusing to approve the President’s appointments to the National Labor Relations Board (NLRB), Congress has effectively prevented that Board from maintaining the quorum required for the agency to act. Recent court decisions have demonstrated the paralyzing effect of that situation.

In August, a federal district court judge dismissed a complaint brought by the NLRB on the grounds that the NLRB and its Acting General Counsel were both improperly filled by recess appointments made by President Obama. Judge Benjamin Settle, District Judge for the Western District of Washington, held that President Obama improperly attempted to fill vacancies on the Board under the Recess Appointment Clause of the Constitution, and that the NLRB thus lacked a proper quorum to take any actions. He also held that the president’s attempt to appoint the NLRB’s Acting General Counsel under the Federal Vacancies Reform Act was also invalid. Therefore, according to Judge Settle, the Acting General Counsel did not have the authority to issue the complaint in the case before the court.

In Hooks v. Kitsap Tenant Support Services, the NLRB sought an injunction preventing the employer from taking various actions against employees during the pendency of proceedings on an Unfair Labor Practices complaint issued by the Board. The judge denied the request on the ground that the NLRB’s Regional Director was without authority to issue the Unfair Labor Practices complaint.

First, Judge Settle found that the NLRB lacked authority because the Board did not have a properly constituted quorum. On this issue, the judge followed the reasoning of the D.C. Circuit Court in Noel Canning v. NLRB, a decision issued in January 2013. In the latter case, the Circuit Court considered a challenge to an action taken by the NLRB following President Obama’s purported appointment of three board members under the Recess Appointments Clause.

In general, the members of the NLRB are appointed by the President and require Senate confirmation. Because the Republicans in the Senate effectively blocked President Obama’s appointment of three proposed members to the NLRB, he made those appointments under the Recess Appointments Clause. That Clause permits a president to make appointments without Senate approval if the vacancies occurred, and the appointments are made, while the Senate is in recess, and if the appointments last only for the remainder of the present session. The three appointments in question occurred during breaks in the 2012 session of Congress. In Noel Canning, the DC Circuit concluded that the power to make “recess appointments” extends only to recesses between sessions of Congress, and not to temporary adjournments during a session of Congress. As a result, the court found that the three proposed appointments were invalid and the NLRB lacked a properly constituted quorum. Following that decision, Judge Settle ruled in the Kitsap case that the Board lacked authority to issue the underlying Unfair Labor Practices complaint.

Judge Settle also rejected the NLRB’s alternate argument, that the Regional Director was authorized to take action by lawful delegation from the Acting General Counsel. On that issue, the judge found that the Acting General Counsel was also improperly appointed by President Obama. President Obama ostensibly appointed the Acting General Counsel under the Federal Vacancies Reform Act. Judge Settle, however, concluded that the Act only permits appointments under narrowly specified circumstances, and that the only one which could apply in this case would be the appointment of someone who had served as a personal assistant to the departing officer in the past year. Because the Acting General Counsel did not serve as a personal assistant to his predecessor in the previous year, he could not be appointed under the Act. Thus, the court concluded, his appointment was invalid, and the Regional Director could not be delegated to act pursuant to his authority.

The ruling in Kitsap could have far-reaching implications for enforcement of the National Labor Relations Act. It is the NLRB that is responsible for enforcing the Act’s prohibition against unfair labor practices. The Kitsap ruling, however, if given widespread acceptance, would essentially paralyze the Board for the foreseeable future. It remains to be seen whether other courts will follow Judge Settle’s lead on this issue. The Noel Canning decision, which underlies Kitsap, is currently pending before the U.S. Supreme Court. In addition, other courts may choose not to follow Judge Settle’s analysis of the Acting General Counsel’s appointment under the Federal Vacancies Reform Act. It is also not yet clear whether the NLRB itself will accept that it is powerless to act. The agency’s administrative law judges may refuse to engage in administrative proceedings on complaints issued by Regional Directors who were appointed during the Board’s alleged invalidity, or they may choose to disagree with the Noel Canning and Kitsap rulings and proceed with business as usual.

If the courts, or the NLRB itself, accept the reasoning of Noel Canning and Kitsap as controlling law, we may be entering a phase of general lawlessness in the labor law community. That phase could last until the President and Congress are able to agree on appointments to the Board. Given the demonstrated resolve on the part of Senate Republicans to reject any request made by President Obama, it may be a long time before we again have an enforceable federal labor law in this country.

The solution to this problem is probably more political than legal. Congress must understand that the public is not willing to accept action by their elected representatives that is designed to interfere with the enforcement of laws that were passed to protect the American worker. It is always a good idea to write letters to these representatives protesting their actions. But in this instance it may also be helpful to continue to invoke the services of the NLRB. Charges should be filed with NLRB regional offices whenever it is suspected that an unfair labor practice has been committed. The Board will either: (1) act on these charges and force the courts to repeatedly reject its efforts at enforcement, or (2) reject all of these claims upon filing, thus creating an enormous backlog of unpursued charges, or (3) recognize the importance of its role and refuse to follow the decisions of lower courts that seek to render it impotent. In any event, there will at least be a buildup of large numbers of unresolved actions. Such large numbers tend to attract the attention of the press and, correspondingly, that of elected representatives. It is much more likely that Congress will find a way to break the gridlock when it knows that a large portion of the public is unhappy with the status quo.

If you are a worker or labor union and believe that you are the victim of an unfair labor practice, you are encouraged to file a charge with the NLRB or seek an attorney who can help you do so.

Lazear Mack, LLP
Employment Law Attorneys
436 14th Street, Suite 1117
Oakland, CA


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