Unions Speak Out on NLRB Recess Appointment Ruling

In case you were wondering what unions thought about the Noel Canning decision, which held that President Obama’s recess appointments to the NLRB were unlawful, your wait is now over. Earlier this week, at its Executive Council meeting, the AFL-CIO let its views be known. In a statement adopted by the Council, the AFL-CIO decried the "sustained and vicious campaign" to "derail" the NLRB. The tools of this campaign, according to the statement, are "arcane Senate rules" used to block nominees and legislative reform and "nine oversight hearings" intended to "intimidate" the NLRB. The statement goes on to describe the Noel Canning decision as "radical" and "sweeping," not to mention "shocking and far reaching."

What is to be done, according to the AFL-CIO? The statement mentions six different actions:

  • The NLRB should "quickly seek review" and reversal of the Noel Canning decision by the U.S. Supreme Court.
  • The labor movement must "mobilize, demonstrate, and take direct action" against those who are "exploiting" the Noel Canning decision.
  • President Obama must immediately nominate, and the Senate confirm, a package of nominees to the NLRB, including current Chairman Pearce (D) and recess appointees Sharon Block (D) and Richard Griffin (D), two Republican members, and Acting General Counsel Lafe Solomon.
  • The labor movement must "mobilize" itself to demand action from the Senate to confirm this package of nominees. "We will hold senators of both parties accountable if they stand in the way or fail to act."
  • Senate Majority Leader Harry Reid (D) must lead the effort to confirm the package, overcome any Republican filibuster, and if not successful, "lead an effort to change Senate rules" so that the appointments cannot be blocked.
  • The Obama administration must also continue to talk about collective bargaining rights, defend the NLRB from congressional "attacks," and "work aggressively" to win confirmation of the President’s appointees.

Putting aside its rhetoric, the statement is nonetheless significant for the labor professional. Initially, it would seem to increase the likelihood that the NLRB will appeal the Noel Canning decision. Moreover, it is a clear and public marker from the AFL-CIO that even some Senators in the Democratic Party who do not act with what the AFL-CIO might view as sufficient earnestness on this issue could face some fall out. What that might mean in terms of campaign contributions or other political support is not clear from the statement.

Whether this statement, or any accompanying AFL-CIO lobbying, will ultimately change the situation, however, is yet to be seen. The only nominees the President sent to the Senate were the recess appointed Members Block and Griffin, but no Republican nominees. The NLRB has also not announced its decision on whether to appeal Noel Canning. One thing remains certain: until the Supreme Court decides on the validity of the recess appointments, or the President and Senate act to confirm a full, five-member NLRB, all of those who deal with the NLRB, whether employers, unions, or employees, will continue to confront the uncertainty that flows from Noel Canning.