Appeals Court Hears NLRB Recess Appointments Case

Dec 5, 2012

What does it mean for the Senate to be in recess? Today, the D.C. Circuit Court of Appeals was challenged to figure that out.

This stems from President Obama bypassing the Senate in appointing three nominees to the National Labor Relations Board (NLRB). The Wall Street Journal sets it up:

[I]n January Mr. Obama named three new members of the National Labor Relations Board along with Richard Cordray as the head of the Consumer Financial Protection Bureau when the Senate wasn't in recess. While Congress was conducting pro forma sessions, Mr. Obama pulled this end run around the Senate's advice and consent power.

In Noel Canning v. NLRB, a Washington state Pepsi bottler claims that the NLRB lacked a three-member quorum when it decided a labor case because the recess appointments were illegitimate. In order for the President to make a recess appointment, the Senate must adjourn, and under Article I, Section 5 of the Constitution neither house of Congress can adjourn for more than three days without the other's permission.

On January 4, the day Mr. Obama packed the NLRB, Congress considered itself to be in session. But the White House claimed the pro forma session didn't count because the Senate wasn't really available to do confirmations except by unanimous consent.

The editorial crushes this argument:

The Senate happens to do much of its business by unanimous consent, including confirmations of executive branch employees and even federal judges, including (then attorney and now Chief Justice) John Roberts's 2003 confirmation to the D.C. Circuit. Mr. Obama himself has signed legislation passed during pro forma sessions, including the Senate's 2011 payroll tax extender and the Airport and Airway Extension Act.

The U.S. Chamber along with the Coalition for a Democratic Workforce filed a brief in Noel Canning v. NLRB and argued before the court that because the recess appointments weren’t “legally effective” the NLRB “lacks the statutorily required quorum of at least three members to adjudicate disputes and issue rules.”

From a practical standpoint, these constitutionally questionable appointments have weakened the NLRB and created another level of uncertainty for both employers and employees.  The Board has issued around 200 decisions and those will have to be revisited if the appointments are ruled invalid. It's best that this question be resolved now rather than wait for more decisions that could later have to be revisited.

Gary Lofland, a Washington-based lawyer with thirty years of expertise handling labor and employment matters, was a member of the legal team representing the Noel Canning Corp., the bottling company who brought the challenge to the recess appointments with the U.S. Chamber’s support. Lofland tells us that the uncertainty about the NLRB’s authority to issue rulings has a particularly profound and negative effect on small and mid-size corporations. According to Lofland:

Small businesses often face labor disputes that could potentially threaten their ability to continue doing business. They deserve to know whether the body adjudicating their decisions has the authority to do so. They can’t afford to wait years to know whether a decision by the board – good or bad – has any legal force.

Hopefully the court will conclude that words mean things, and the President can only use his recess appointment power only when the Senate actually is in recess.

NOTE: Gary Lofland's quote was added as an update to this post.

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