By U.S. Chamber of Commerce 
The SEIU, which came out against  the D.C. Circuit’s January 25, 2013, landmark ruling  invalidating three recess appointments to the National Labor Relations Board (NLRB), now finds itself in a very awkward position: it just lost its own case in a decision last week by that very same Board – which has basically ignored the D.C. Circuit’s Noel Canning v. NLRB  ruling and proceeded with “business as usual.” The case, Union of Union Staff (SEIU Healthcare Michigan) , is just one of 26 decisions the NLRB has issued since the D.C. Circuit ruled the board is basically closed for business (and one of nearly a thousand decisions  issued by the NLRB while it lacked a lawful quorum to do business, starting in August 2011).
Another layer to the irony is that the SEIU lost its case because the NLRB found that the SEIU, acting in its capacity as an employer, had engaged in an unfair labor practice by allegedly not following through with a settlement of a dispute with one of the union’s own employees. Of course, this isn’t the first time  the SEIU has had run-ins with its staff union.
The SEIU now faces the same uncertainty about whether the NLRB had any legal authority to rule against it that the U.S. Chamber has been warning about since before the President appointed the nominees to the NLRB in an unprecedented and controversial manner. Indeed, the U.S. Chamber briefed, argued, and won the Noel Canning case on behalf of its member in order to remove the cloud of uncertainty sooner rather than later.
Unfortunately, after the Noel Canning decision, the NLRB has exacerbated the problem by claiming that Noel Canning decision applies only to Noel Canning. Acting as if the D.C. Circuit didn’t rule that the agency lacks a quorum to conduct business, the Board has continued to issue decisions that the agency knows full well are subject to legal challenge. The U.S. Chamber’s President and CEO Tom Donohue has called on the Administration  to immediately seek U.S. Supreme Court clarification on the constitutionality of the recess appointments, instead of continuing to waste everyone’s time and money. So far, though, the Administration hasn’t lifted a finger.
Until the Supreme Court does weigh in, if the SEIU wants clarity on whether the NLRB had legal authority to rule against it, the union could always appeal the NLRB ruling to the D.C. Circuit. Indeed, earlier this month, the U.S. Chamber provided information to employers  about how they might preserve their rights in light of the Noel Canning decision – such as considering appealing NLRB decisions to the D.C. Circuit. Dozens of challenges to the NLRB’s authority are now pending in courts across the nation. The U.S. Chamber’s Litigation Center has established a resource page  to help all employers – even labor unions! – monitor developments in recess appointments litigation until the U.S. Supreme Court resolves the issue once and for all.
Employers and employees, businesses and unions – we’re all in the same boat. We all need the U.S. Supreme Court to clarify once and for all – and soon – if the NLRB is open for business.