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Appeals Court Finds 'Recess' Appointments to NLRB Unconstitutional

Jan. 25, 2013
Business organizations applaud the decision, which could have repercussions on other labor board findings.

A U.S. appeals court on Friday ruled constitutionally invalid “recess” appointments made by President Barack Obama to the National Labor Relations Board in January 2012, a decision that could have significant ramifications on all decisions made by the board in the past year.

The ruling drew swift reaction from the National Association of Manufacturers and others business organizations, which have argued that the federal labor board has far exceeded its authority in recent years.

“The NLRB’s activist and aggressive actions in recent years have raised significant concerns, including challenges to the constitutionality of the board’s composition,” commented NAM’s Joe Trauger, vice president of human resources policy, on the association’s Shopfloor blog. “Today’s ruling gives strong confirmation to those concerns and is a significant rebuke of what has become an increasingly overreaching NLRB with an intent to ignore its statutory authority.”

The National Retail Federation called it “a victory for every American employer.”

The U.S. Court of Appeals for the District of Columbia Circuit said the recess appointments  were unconstitutional because the Senate in fact was in session when the appointments were made. Thus, Senate approval was required.

Darrell Issa, R-Calif., chairman of the House Committee on Oversight & Government Reform, has been an outspoken critic of the NLRB, citing a “record of rogue action and lack of transparency.”  He called for the NLRB appointees to step down and said further repercussions were likely.

“Today’s ruling will certainly cause other opinions unconstitutionally issued by the board to be invalidated. To avoid further damage to the economy, the NLRB must take the responsible course and cease issuing any further opinions until a constitutionally-sound quorum can be established,” he said in a statement.

The federal appeals court decision came in response to a suit brought by a canning company against the NLRB. Noel Canning had petitioned for review of an NLRB finding that the company had violated labor law. Noel Canning argued the decision was invalid because the board lacked a required quorum to issue a decision, as three members were not valid board members.

“Because we agree that the appointments were constitutionally invalid and the board therefore lacked a quorum, we grant the petition for review and vacate the board’s order,” the appeals court panel wrote in its decision.

While business organizations applauded the decision, the United Food and Commercial Workers International Union did not.

“This decision is misguided,” said UFCW President Joe Hansen in a statement. “When President Obama made appointments to the NLRB during a congressional recess, he was merely exercising his constitutional authority. The real issue here is the Senate’s inability to confirm qualified nominees. Senate Republicans, aided by a broken rules system, are carrying the water of big business and denying workers and unions a fair shake.”

NLRB Chairman Mark Gaston Pearce said the board believes the president's decision will "ultimately be upheld." Meanwhile, "it should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been been raised in more than a dozen cases pending in other courts of appeals," he said in a statement.

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