The Meyers Report: NLRB Ruling, Landmark Case?

On Friday, Jan. 25, 2013, the D.C. Federal Court ruled against the President’s recess appointments to the National Labor Relations Board. This ruling also could transform into a constitutional landmark case impacting separation of powers between the branches of government. If it does, presidential executive orders and rules issued by federal regulatory agencies also could be challenged.

“In setting aside the President’s recess appointments, the court also may invalidate 600+ NLRB 2012 rulings for lack of authority to even function,” said Chicago labor attorney James Hendricks, who has several NLRB cases pending in the D.C. Federal courts.

“As the ruling court and the NLRB are in the same district, the NLRB must comply,” said Hendricks, of Lewis Brisbois Bisgaard & Smith LLP. “Were they in different districts, the NLRB might have a bit of flexibility in ignoring the court, at least temporarily. But, here they cannot.”

The Obama NLRB’s clear social adjusting pro-union agenda bias “is way over the top,” said a past president of the National Employment Lawyers Association, whose members represent unions and plaintiffs. “They’re making up law as they go to push a social agenda and by-pass Congress.”

The uncertainty of knowing what the Supreme Court will do may create business and market uncertainty. In the 2012 ‘December massacre,’ the recess appointees made numerous anti-employer decisions, which undid 35-50 years of precedents. The NLRB overturned and/or issued new decisions not contemplated by employers in their busness planning.

• In Hispanics United of Buffalo (359 NLRB #37) (12/14/12), the Board ordered the reinstatement of employees who were terminated because they were bullying other employees on their Facebook pages. The NLRB said this was “protected (union-like), concerted activity,” because it was done by a group.
• In WKYC-TV (359 NLRB #30) (12-12-12), The Board overruled a 1964 decision and ordered the employer to honor the union dues check-off after the collective bargaining contract had expired.
• In American Baptist Homes, (359 NLRB #46) (12/15/12), the Board overturned a 35 year precedent, holding that witness statements taken during an internal investigation are not automatically considered confidential.

Also in another court case, in question is the recess appointment of Consumer Financial Protection Bureau head Richard Cordray.

The constitutional issue. “The ruling could morph into a true landmark decision of constitutional law and separation of powers,” said Hendricks. “Does this president, or any president, have the right to go around Congress when he does not like Congress? And, can he ignore the courts? This is heightened when the subject is a unilateral major social re-engineering of the nation.”

Hendricks forecasts that “if the Supreme Court affirms last week’s ruling, we should expect a raft of similar challenges against anything that smacks of national political policy making from ‘presidential executive orders’ to new regulations from federal agencies. It’s all about separation of powers and respect for the law, other branches of government, and the Constitution.”

On the same day of the ruling, NLRB Chairman Mark Pearce issued a statement saying, “…the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

The President could have accepted the court ruling and pushed to get his appointees confirmed by the Senate. Had he done that, he might well have been successful. If the confirmations failed, the President could have blamed obstructionist Republicans, but he did not.

The President, through Chairman Pearce, directly challenged the authority of the Federal Court system by blatantly ignoring the ruling. By making the recess appointments in the first place, the President declared a greater power than the Senate itself to interpret Senate rules. In both, “the administration has raised the bar on the issue of separation of powers to a constitutional level,” said Hendricks. “When the case gets to the Supreme Court, even the most liberal justice could become conservative.”

The bottom line. The President’s power excesses may permanently weaken the Executive Branch for future presidents.

Will the President back off and use damage control? Or, will he create the most serious constitutional arguments in the last 100 years?

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