On Friday, January 25, 2013 the United States Court of Appeals for the DC Circuit ruled that President Obama did not have the power to fill vacancies on the National Labor Relations Board (NLRB) since the appointments were made while the Senate was still in session. The Court held that President Obama violated the Constitution by making recess appointments to a labor panel while the Senate was not technically in recess. The Court’s decision marked a victory for Republicans and business groups critical of the NLRB. If the decision stands, the Court’s ruling could invalidate hundreds of decisions rendered over the last year, including some decisions that make it easier for unions to organize. While no decision has been made, the Justice Department hinted that the administration would ask the Supreme Court of the United States to review the decision of the DC Circuit.
I believe the decision by the DC Circuit now presents an opportunity for new appointments to the NLRB who can create a more balanced approach to decision making in the labor relations arena. During Obama’s term in office, his pro-union bias led to extraordinarily and openly pro-union appointments to the NLRB. This created the most lopsided playing field in favor of labor unions than at any other time in recent history, if not in the entire history of the NLRB.
I don’t believe the administration will appeal the decision of the DC Circuit. If it appeals the decision and loses, it could risk hundreds of additional decisions of the NLRB moving forward being invalidated. I believe this risk is too great for the administration to take. President Obama’s biggest quandary is how to appease the labor union movement if no appeal is taken. Obama faces a true “catch 22”, since he is damned if he does and damned if he doesn’t. Nevertheless, this is an opportunity for sanity to be regained in the arena of labor relations.