U.S. Chamber Joins Challenge to NLRB Appointments

Wednesday, March 14, 2012 - 8:00pm

Says Dubious Appointments Have Further Eroded NLRB’s Credibility

WASHINGTON, D.C.—The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) today moved for leave to intervene in a lawsuit to challenge the authority of the National Labor Relations Board (NLRB) to adjudicate charges absent a three-member quorum. The Chamber and CDW seek a swift and decisive ruling whether the president’s dubious recess appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB unlawfully circumvented the Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. The case, Noel Canning v. National Labor Relations Board, is before the U.S. Court of Appeals for the D.C. Circuit.

“Appointing three of five members to the NLRB in a legally questionable way casts doubt on the work of the entire agency,” said Thomas J. Donohue, president and CEO of the Chamber. “We cautioned in January that shoehorning these nominees into office in this controversial way would throw the legal validity of every decision of the Board into question.  Our concern has now become a reality. We are simply asking the courts to sort out the question of the NLRB’s authority quickly, so that employers and employees alike can have predictability and certainty.”

Noel Canning, a small business operating in Washington state, appealed a ruling by the NLRB that the company had violated the National Labor Relations Act (NLRA). The Chamber’s public policy law firm, the National Chamber Litigation Center, filed a motion on behalf of the Chamber for leave to intervene in the case in support of Noel Canning. The Chamber seeks to argue that the three attempted recess appointments were not legally effective because the President made them when the Senate was in session, not in recess. Accordingly, the Board lacks the statutorily required quorum of at least three members to adjudicate disputes and issue rules.

“Allowing the Board to act when it may not have a quorum adds even more uncertainty to our economic climate,” continued Donohue. “That is why we are looking to join a small business lawsuit to challenge these appointments—we want the authority of the Board clarified. Employers and employees need to know what it means when the NLRB orders an employer to bargain with a union, to modify its compensation and benefit plans, or to cease contracting work—to offer just a few examples.  Is the order legally rendered, or will it be invalidated in the future?  Without this kind of certainty, we cannot foster an environment that will lead to economic growth and job creation.”

The Chamber’s motion for leave to intervene is available here: http://www.chamberlitigation.com/noel-canning-v-national-labor-relations-board

The U.S. Chamber of Commerce is the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.