Obama Recess Appointment Ruling Opens Pandora's Box Of Legal Challenges

WASHINGTON -- The appeals court ruling striking down President Barack Obama's recess appointments to the federal labor board is barely a week old, but the business community is already using it to undermine decisions made by the board that had benefited unions.

In the ruling, known as Noel Canning v. National Labor Relations Board, a panel of three Republican-appointed judges declared that Obama had violated the Constitution last January when he appointed three members to the NLRB, the federal agency tasked with enforcing labor law on unions and employers.

If it stands, the sweeping decision by the U.S. Court of Appeals for the District of Columbia Circuit could call into question a long tradition of presidential recess appointments, and it could undo a year's worth of work by the labor board, as the invalidation of the appointees would mean the board didn't have a legitimate quorum to issue rulings.

In a sign of the legal maneuvering that may come, the U.S. Chamber of Commerce has filed a letter using the ruling to challenge significant new rules that the labor board put forth to streamline the union election process. The Chamber's letter is most notable because the new union election rules were not issued under the current board that was rocked by the appeals court decision last week.

Instead, the rules were issued in December 2011, when the board had a different makeup of members. Given last week's ruling, the Chamber argues, the March 2010 recess appointee to the board of Craig Becker was also illegitimate -- and without Becker, the board didn't have the appropriate quorum to issue the rules to begin with.

"[U]nder Noel Canning, there were only two properly sitting Board members when the rule was purportedly adopted on December 16, 2011," the Chamber lawyers write in the letter, dated Jan. 30.

The letter hints at the pandora's box that's been opened by last week's decision, as any competent lawyer will use it to question unfavorable decisions made under similar recess appointments. The Chamber has already issued guidance to its members urging them to try to overturn union- and worker-friendly decisions that the labor board has issued over the past year. The board has ruled on more than 200 cases since Obama made the recess appointments.

"My sense is the business side is sort of licking its chops," said Wilma Liebman, a former labor board chair. "This decision, were it to be the final word, potentially has gigantic ramifications, and not just for the NLRB."

The sweeping nature of the appeals court decision would cast doubt on many of the recess appointments made to the labor board in recent decades, by presidents on both sides of the aisle. Finding it increasingly difficult to have board nominees confirmed by the Senate, presidents have relied on the recess appointment simply to keep the five-member board functioning, if not always at full capacity. By HuffPost's count, at least 23 recess appointments have been made to the board since 1988.

The union election rules were already tied up in litigation on appeal, making it easy to raise Noel as a pertinent issue. But, in theory at least, the ruling could even shake up cases that were thought to have been long settled.

"I'm being half facetious, but why limit it to the election rules?" said Fred Feinstein, a former general counsel for the labor board. "It's occurred to me they could go back forty or fifty years and try to declare cases invalid."

"All of this suggests that we're in uncharted waters here to some extent," Feinstein went on. "When you dig down, the implications of a decision like this are fairly chaotic. It's difficult to unscramble this egg."

Nancy Cleeland, a spokeswoman for the NLRB, wouldn't comment directly on the Chamber's letter, but she said the board itself is carrying on with business as usual in the wake of the ruling, which many expect to be taken up by the Supreme Court.

"As the board has already stated, this ruling applies only to one case," Cleeland said. "The board is continuing to move forward and issue decisions."

While the board has said it's merely trying to update antiquated labor law and eliminate red tape, the business lobby has assailed the new election rules as a gift to organized labor, claiming they'll lead to "quickie" union elections at workplaces. Business-friendly House Republicans, many of whom have assailed the labor board over the past two years, went so far as to pass legislation that would block the election rules from going into effect.

Michael Wasser, a policy analyst at American Rights at Work, a pro-union advocacy group, said the Chamber is using the recent court decision to try to block what he described as commonsense reforms to the union election process.

"This letter is the latest in a long line of tactics used by the Chamber and big business to undermine workers who try to gain a voice on the job," Wasser said. "The rule in question modernizes the union election process so both businesses and employees have the benefit of clear, consistent procedures, and workplaces are more productive because of it."

While the Chamber has advised companies to appeal unfavorable rulings, at least one company has already gone a step further. According to Reuters, hospital chain Prime Healthcare Services has told the Services Employee International Union that it simply won't comply with two board rulings: one that mandated the collection of union dues after a collective bargaining agreement has ended, and another forcing employers to turn certain materials over to unions during internal investigations.

According to Feinstein, the NLRB historically has a good record of handling cases expeditiously, to the benefit of both unions and employers. The possibility that cases may be upended -- or at least tied up in further litigation -- could disrupt the board's core mission, he said.

"This uncertainty of how the process will unfold at this point undermines the ability of agency to do what it's been successful at: getting the cases quickly and resolving them quickly," said Feinstein.



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