Tuesday, February 5, 2013

Why the DC Circuit's NLRB Recess Appointments Decision Affects (Almost) Everyone

By now, you've probably already heard that the DC Circuit Court of Appeals held that President Obama's NLRB "recess" appointments were unconstitutional. Yesterday, Dan Schwartz downplayed the importance of the decision. He raised some good points, including that most employers don't deal with the NLRB, the DC Circuit's decision is not binding in other circuits, and he noted the waning influence of unions generally. True, true, and true . . . but, I have some counterpoints:

1. The NLRA Affects (Almost) Every Employer
The NLRA has many union rules, but it also protects concerted activity aimed at addressing terms and conditions of employment at almost all private non-union employers.

2. The DC Circuit is Not Just Another Circuit Court
I am in the Third Circuit. Yes, it's true that the DC Circuit's decision is not binding precedent in the Third Circuit, but (and this is a HUGE but), the NLRA provides:
Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business, or in the United States Court of Appeals for the District of Columbia, by filing in such a court a written petition praying that the order of the Board be modified or set aside.
29 U.S.C.A. § 160. In other words, if you get an NLRB decision you don't like, you can appeal it to your home Circuit, OR the DC Circuit . . . which is now a magical place where NLRB decisions are dead on arrival (I think appellants will be smart enough to adjust their appellate strategy accordingly).

3. This Creates a Circuit Split on the Issue
The DC Circuit's opinion acknowledges that it is splitting with the Eleventh Circuit. Why does that matter? It greatly increases the chances that the Supreme Court will decide this issue (which would be binding on everyone). In fact, Paul Clement just asked the Supreme Court to review this issue yesterday (in a case entirely unrelated to the DC Circuit case).

4. It's Not Just About the NLRB
The DC Circuit's decision was much broader than just striking Obama's appointment of NLRB members during a pro forma session of Congress. If the Supreme Court adopts the DC Circuit's reasoning, it would render all intrasession recess appointments unconstitutional. This would shift the balance of power between the executive and legislative branches in appointment battles.

Image: NLRB logo used in commentary on the NLRB. Not official use.