Writing at Roll Call, former National Labor Relations Board chairman Peter Schaumber has some harsh words for the current NLRB leadership, which is carrying on with business as usual despite a January federal court ruling which found three of the board's five members to have been appointed unconstitutionally by President Barack Obama. Schaumber writes:
Continuing to issue decisions in defiance of the court decision undermines the rule of law that NLRB members are sworn to uphold. The D.C. Circuit is not any court for the NLRB. Any board decision can be appealed to that court as a matter of right. Consequently, Pearce's board may continue to issue decisions, but they will be nullified on arrival at the courthouse ab initio — as if they had never been issued.
When board decisions are quickly followed by their judicial nullification, how can the public's faith in the rule of law and the board's legitimacy not be seriously undermined? Continuing to issue decisions under these circumstances forces parties to spend time and money litigating cases before a board that has been declared without authority to hear them. Workers whose vote for a union is upheld by the board will reasonably demand to know why their vote has suddenly lost all meaning….
It is time for Congress to consider transferring the board's authority to a more neutral body, such as the federal judiciary.