Friday, January 25, 2013

Is the Court Putting the Brakes on the NLRB?

President Obama's Administration has actively advanced the union agenda.  One tool used by the Administration has been to make appointments to the National Labor Relations Board (NLRB) while the Senate was in session but not doing business.  Of course, the purpose of taking this action while the Senate was not conducting business is to appoint persons who would otherwise not be confirmed by the Senate. 

Noel Canning, a family-owned enterprise in Washington state was ordered by the NLRB to enter into a collective bargaining agreement with the Teamsters.  Noel Canning challenged the NLRB order by challenging the President's appointment of three pro-union NLRB members. 

The Constitution requires the President to obtain the advice and consent of the Senate when making appointments.  However, the President can make temporary appointments if the Senate is in recess and the term of a person has expired.  In this case, President Obama unilaterally determined that the Senate's decision not to conduct business during a few weeks of the holiday season in 2011-12 constituted a recess, allowing him to make the appointments. 

Noel Canning contends that the Senate was not in recess when the appointments were made.  It claims that because of the invalid appointments, the NLRB did not actually have a quorum with which to do business. 

The Court of Appeal agreed with Noel Canning and invalidated the NLRB appointments.  The Court determined that small breaks in the Senate's schedule did not constitute a "Recess" as that term is used in the Constitution. 

It's a great victory for the Constitution and the principles of separation of powers.  The President has seemed very content to aggressively take action that are constitutionally suspect.  Many of the President's actions are polarizing.  Rather than compromise, he has made the decision to push his agenda forward in spite of opposition by other political leaders and in spite of the language of the Constitution. 

The Noel Canning case is also a great victory for employers.  The impact of the decision could be the voiding of the decisions made by the NLRB since January 4, 2012, the date of the appointments.  This will set back the union agenda and restore some balance to the workplace. 

Read the Court's opinion at:$file/12-1115-1417096.pdf

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