[author: Doug Hass]
Sandwiched between two recent conflicting U.S. District Court rulings on the question of the National Labor Relations Board’s (NLRB) authority to promulgate a notice posting requirement, the NLRB recently turned aside a challenge to the recess appointments of Members Richard Griffin, Terrence Flynn, and Sharon Block. In Center for Social Change, Inc., a refusal to bargain case, the Board unanimously rejected an employer’s challenge to the validity of President Obama’s January recess appointments in a decision issued on March 29. Although the Board split along party lines over the reasoning, the decision illustrates the often insurmountable hurdle that parties challenging an agency over its own authority to act will face.
In the case, Acting General Counsel Lafe Solomon filed a motion for summary judgment, which was transferred to the Board to decide. In response to the motion, the employer asserted that summary judgment was not appropriate because the Board lacked a quorum to act under the Supreme Court’s 2010 decision in New Process Steel on the “two-member Board” cases. More specifically, the respondent claimed that President Obama’s January 4, 2012, recess appointments of Members Griffin, Flynn, and Block “occurred while the United States Senate was in session and were made without seeking the advice and consent of the Senate, in violation of Article II, Section 2, Clause 2 of the Constitution.” Because it contended that the President’s appointments were unconstitutional, the employer argued that the Board therefore lacked a quorum to act.
The Board unanimously rejected the Center’s claim, but split on the reasoning for its ruling along party lines. The three Democratic members—Chairman Pearce and Members Griffin and Block—broadly found that the “well-settled presumption of regularity of the official acts of public officers” applied to Board actions “in the absence of clear evidence to the contrary.” Citing a similar 2001 decision in Lutheran Home at Moorestown that challenged the authority of an Acting General Counsel, the majority “declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act.”
Members Hayes and Flynn—the minority Republican members—agreed with the result, but offered slightly different reasoning. Both Members agreed with the majority that the Board had no jurisdiction to decide the appropriateness of the recess appointments, but declined to adopt the majority’s broader reliance on the presumption of regularity.
In a related development, we expect a ruling soon in the U.S. Chamber of Commerce’s lawsuit pending in the district court in Washington D.C. challenging the NLRB’s “quickie election” rule and, in part, the Board’s December 2011 process for approving the new rule with the votes of only two of its then-three members. Although the NLRB has forged ahead by scheduling training for its regional offices on the new election rules this week and next week, the D.C. court has heard full briefing from both parties on the Chamber’s motion alleging in part that because Member Hayes was absent from the final vote to approve the quickie election rules, the Board’s action to approve them was invalid due to a lack of a quorum. Employers must follow this litigation closely, as well as the other developments we expect this month. We will continue to monitor this case, as well as the numerous other challenges to the Board’s quorum and authority, and provide further guidance as appropriate.
In the meantime, if you have any questions or would like to discuss either the NLRB’s quickie election rules or the pending notice posting rule in greater detail, please contact Doug Hass, Chris Johlie, or Amy Zdravecky.
 The Board also unanimously rejected the employer’s challenge to the Acting General Counsel’s authority to issue the complaint under the theory that his interim appointment had lapsed. Member Flynn joined the Democratic majority, which based its decision on the presumption of regularity in Lutheran Home at Moorestown. Member Hayes again found no jurisdiction.