In an op-ed in Politico today, Chamber of Commerce President Tom Donohue says the current state of limbo regarding the National Labor Relations Board is untenable for the business community. He’s referring to the fact that an Appeals Court has ruled that President Obama’s recess appointees to the board were unconstitutional. The board has vowed to continue its job of overseeing management/labor relations as if the ruling didn’t happen.
This can’t go on, Donohue warns:
Those regulated by the NLRB now face a host of difficult questions: Are the NLRB’s orders currently valid? Will they be invalidated in the future? Can a company reopen a case that has already been decided against it? Does a company need to raise a challenge to the recess appointments in its own case? What will happen if the NLRB sues to enforce an order outside of the D.C. Circuit? Should a company rush to file an appeal in the D.C. Circuit? Can a company wait to see what happens in the Supreme Court, or must it comply with an NLRB order now?
While the NLRB shrugs its shoulders and says, “So what?” the business community is asking, “Now what?” The administration knew full well that these controversial appointments would be challenged. Now, it must take some sensible steps to avoid adding to uncertainty and wasting time and money.
First, the Department of Justice should seek Supreme Court review of the decision as soon as possible to achieve nationwide certainty on the validity of the recess appointments. It should not, as some press reports have suggested, wait for a more favorable decision to be issued by a different appeals court. The case is ready for review now.
Second, pending a Supreme Court ruling, the NLRB and other affected agencies should hold off taking major actions that they know may be invalidated in the future.
Third, rather than deny the effect of the D.C. Circuit’s decision, the government should find a fair and orderly way to process the claims of those who are adversely affected.
An appropriate response by the administration to the ruling requires acting swiftly to bring needed clarity to employers and employees alike.