The U.S. Supreme Court announced on June 24 that it will be reviewing a lower court ruling that President Obama’s early 2012 “recess” appointments of three members to the National Labor Relations Board (NLRB) were unconstitutional. The court likely will hear the case this fall.

“Employers look forward to the Supreme Court weighing in on the president’s illegal recess appointments,” said ABC Vice President of Federal Affairs and Chairman of the Coalition for a Democratic Workplace (CDW) Geoff Burr. “We trust they will affirm lower court rulings that the president cannot use fake ‘recesses’ to circumvent the constitutional role of the Senate to provide advice and consent on nominations. America’s workplace policy is too important to be left to an illegally packed agency.”

The original case was brought by Noel Canning, a Washington state bottling company, which challenged an NLRB decision that it must enter into a collective bargaining agreement with a labor union. The ABC-led CDW intervened in the case and, on Jan. 25, the U.S. Court of Appeals for the D.C. Circuit ruled that the president violated the Constitution when he bypassed the Senate to fill NLRB vacancies. On May 16, the U.S. Court of Appeals for the Third Circuit issued another ruling declaring the March 2010 recess appointment of Craig Becker to the NLRB unconstitutional, as well. 

After the Appeals Court for the D.C. Circuit issued its ruling, NLRB Chairman Mark Pearce declared the NLRB, “will continue to perform [its] statutory duties and issue decisions.” Then in April, the NLRB filed a petition with the Supreme Court to appeal the D.C. Circuit’s ruling. In response, all 45 U.S. Senate Republicans, the CDW and the U.S. Chamber of Commerce filed friend-of-the-court briefs asking for the U.S. Supreme Court to uphold the decision.

Pearce’s statement also prompted ABC to support the Preventing Greater Uncertainty in Labor-Management Relations Act (H.R. 1120), which would prohibit the NLRB from taking any action that requires a quorum until the board members constituting the quorum have been confirmed by the Senate or the Supreme Court issues a decision. The bill passed the U.S. House of Representatives in April and an identical Senate companion bill has been introduced by Sen. Lamar Alexander (R-Tenn.). 

“While we welcome the court’s review of this matter, a final outcome is still months away,” wrote House Education and the Workforce Committee Chairman John Kline (R-Minn.) and Subcommittee on Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) in a press release. “Meanwhile, the board continues to issue new decisions and exacerbate the legal uncertainty threatening workers and employers across the country. As we wait for the Supreme Court to do its work, it’s time for the Senate to do its job. The House has acted. We urge the Senate to pass legislation that will prevent the board from inflicting further harm on America’s workplaces.”