Hundreds of National Labor Relations Board (“NLRB”) actions, many of which make it easier for workers to unionize, would be frozen or invalidated under legislation proposed this week by Sen. John Barrasso (R-Wy).
The so-called “NLRB Freeze Act of 2013” is a response to a recent D.C. Circuit ruling that President Barack Obama violated the Constitution when he appointed three NLRB members in January of 2012. As reported here, the court held that President Obama improperly made unilateral “recess appointments” without Senate confirmation when the Senate was technically in session.
Sen. Barrasso’s proposed legislation is largely symbolic because it stands virtually no chance of passing the Democratic-controlled Senate. Nevertheless, Barrasso said that bill is necessary to remove the “cloud of uncertainty” that hangs over NLRB policy in light of the court’s ruling.
Until we have final resolution from the courts, the NLRB should not be able to issue or enforce any decisions that will create even more confusion and illegitimate regulations,” Barrasso stated in a press release.
President Obama is expected the appeal the D.C. Circuit’s ruling to the Supreme Court. Until then, the status of hundreds of NLRB decisions over the past year remains in doubt.
The Obama Administration has expressed confidence that the D.C. Circuit’s ruling was faulty and will be overturned. Alternatively, administration officials argue that the ruling should apply only to the specific case at issue, Canning v. NLRB, and has no broader effect on other NLRB actions.
NLRB critics contend that all agency actions from the past year should be invalidated because, without the three Obama nominees, the board lacked the required quorum when it voted.
Barger & Wolen will continue to follow this legislation, as well as the case.