Capitol Hill

During recent months, NRCA has made significant progress in the fight against excessive government regulations. The victories came in the form of favorable court decisions regarding litigation challenging regulations issued by the National Labor Relations Board (NLRB).

Challenging NLRB

NRCA represents union, open-shop and dual-shop employers and supports policies that maintain an equitable balance in labor-management relations. Unfortunately, NLRB, an independent agency tasked with enforcing U.S. labor laws, has pursued an activist agenda with the objective of tilting the playing field in favor of unions. NLRB has issued regulations and decisions that would be burdensome for employers, particularly small businesses, and curtail the opportunity for employers and workers to have meaningful dialogue regarding complex issues involved with collective bargaining.

NRCA, as member of the Coalition for a Democratic Workplace (CDW), has challenged NLRB initiatives and appointments to the board in court to preserve a balance in labor-management relations and protect employers from burdensome regulations. This has proved to be successful.

Court rulings

In the first case Jan. 25, the U.S. Court of Appeals for the District of Columbia ruled President Obama's “recess” appointments of Sharon Block and Richard Griffin to NLRB in January 2012 are unconstitutional. The decision came in response to litigation brought by CDW and other plaintiffs challenging President Obama's decision to bypass the Senate confirmation process when making the appointments. The Constitution allows the president to make recess appointments when Congress is not in session, but the Senate was in pro-forma session at the time. President Obama argued the appointments were valid because Congress does little work during pro-forma sessions, but the court disagreed.

NRCA supports litigation challenging the recess appointments because of concerns about NLRB's activist agenda. It is imperative board appointments be subject to the normal Senate confirmation process to ensure high-quality appointees.

In a second case May 7, the U.S. Court of Appeals ruled in favor of a lawsuit brought against an NLRB regulation that would require employers to post a notice of employee labor rights in the workplace. CDW, in conjunction with other plaintiffs, also filed a lawsuit challenging this regulation.

NRCA opposes the notice-posting rule on the grounds the board does not have the statutory authority to issue the regulation. Allowing a government agency to issue regulations without clear legal authority would set a terrible precedent. NRCA also is concerned the regulation would create a new unfair labor practice without authority from Congress.

The court ruled NLRB does not have the statutory authority to require employers to post the notice nor does it have legal authority to create a new unfair labor practice. If this ruling is not overturned, the regulation will be invalidated permanently. To date, it is uncertain whether the government will appeal this ruling.

In a third case May 16, the U.S. Circuit Court of Appeals for the Third Circuit ruled another recess appointment made by President Obama to NLRB in 2010 is unconstitutional because, again, it was made when Congress was in pro-forma session. This ruling invalidates the appointment of board member Craig Becker in March 2010, which NRCA opposed at the time.

This ruling is similar in its reasoning to the Jan. 25 court ruling regarding the 2012 recess appointments. The administration has appealed that ruling to the U.S. Supreme Court, and this similar ruling increases the likelihood the Supreme Court will consolidate the cases and consider the issue this fall to render a final decision.

Positive outcomes

The court decisions regarding the recess appointments have threatened to throw NLRB into chaos. If the rulings stand, hundreds of actions by the board during the past few years could be thrown out, reaching back several years.

These judicial decisions have severely constrained NLRB's problematic regulatory agenda in the short-term, a key goal for NRCA. Moreover, the rulings should, assuming they are upheld on appeal, have the long-term benefit of constraining executive branch officials from issuing regulations without clear legal authority, which could have far-reaching positive ramifications.

These favorable rulings in litigation supported by NRCA are significant victories in the efforts to curtail excessive government regulations, a major concern of NRCA members. NRCA will continue working to protect employers from burdensome regulations in the legislative, regulatory and legal arenas.

Duane L. Musser is NRCA's vice president of government relations.