The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace (CDW) filed a motion to intervene March 15 in Noel Canning v NLRB, an action filed by an employer seeking to set aside a February NLRB decision affirming a law judge’s finding that the employer violated the NLRA. According to the employer, and the business groups that are hoping to join the action currently pending in the District of Columbia Circuit, the Board lacked authority to issue the ruling because it lacked a valid quorum of constitutionally appointed members.

President Obama made recess appointments of nominees Sharon Block, Terence Flynn, and Richard Griffin on January 4, 2012, to serve as NLRB members. According to opponents of the President’s action, however, the Senate was in session and not in recess. Therefore, they contend, the controversial recess appointments to the NLRB were unlawful, and the Board’s current makeup thus is not legally empowered to issue rulings.

“If granted, CDW’s intervention would accelerate the legal effort to resolve for employers and employees the uncertainty created by a potentially invalidly constituted NLRB issuing important and precedent-setting decisions,” according to a statement issued by CDW chairman Geoffrey Burr. (CDW represents more than 600 employers, associations, and other organizations.) “These appointments have cast into serious doubt the legitimacy of Board decisions and further increased uncertainty among American employers. We are disappointed the President chose this risky course of action rather than seek the advice and consent of the Senate.”

“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, the Chamber’s president and CEO. “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.”

“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.”

Source: CCH Editorial Staff.