The United States Court of Appeals for the Washington DC Circuit ruled unanimously today that President Barack Obama did not have the power to make recess appointments to the National Labor Relations Board in January 2012.
The ruling in Canning vs. NLRB could invalidate rulings, determinations and rulemaking by the NLRB over the past year because the US Supreme Court has already ruled that a three-member Board must be sitting for such actions to be valid. As a result of today’s ruling, only one member of the NLRB, Chairman Mark Pearce, was validly appointed and thus the Board lacks a required quorum for action.
The government is likely to appeal the matter to the US Supreme Court. A similar Supreme Court challenge during the administration of President George W. Bush resulted in an affirmation that the president did in fact, possess recess appointment powers.
While this ruling has the potential to undue many of the NLRB actions and precedents set during the past year, it does not mean employers should be less vigilant or alert to union activity in their workplace. Unions still represent a powerful force by presenting themselves as an alternative to inattentive or poor management, and exert considerable political influence.
Business owners and managers must ensure that the conditions that invite union representation do not exist within their enterprises. These conditions include a lack of respect, supervisory mistreatment, inconsistency in the application of policies, favoritism, threats to job security and changes within the workplace that cause employees to consider the need for either ‘protection’ or someone to speak for them.