April 29, 2013
By Larry Cary, Esq.
This past week the Obama Administration petitioned the Supreme Court to hear its appeal from the decision of the U.S. District of Columbia Circuit Court in Noel Canning v. N.L.R.B. The D.C. Circuit Court’s decision shuts down the National Labor Relations Board by eliminating the U.S. Constitution’s grant of Presidential power to appoint senior federal officials when the Senate is not in session. The Supreme Court is expected to hear the case, which will likely be decided sometime in 2014.
On January 4, 2012, President Obama made three recess appointments to the NLRB. At the time, the Senate was on a month-long winter vacation and meeting in pro forma session every three business days for less than a minute – just enough time to gavel-in and adjourn for lack of quorum, during which time no business could be conducted. The Constitution provides that the President has the power to make temporary “recess appointments” when the Senate is not in session. The D.C. Circuit Court ruled that recess appointments cannot be made during a pro forma session.
The House of Representatives, which is dominated by the Republicans and under the sway of the radical right wing Tea Party Republicans, refused to allow the Senate to go out of session because it wanted to block the President’s power to make recess appointments. The Constitution provides that neither house of the Congress may adjourn for more than three days without the consent of the other body. If there is a disagreement between the two bodies about the date of adjournment, the President has the authority to adjourn the Congress, but no President has ever used this power.
Continuing its attack on the NLRB, the Republican dominated House of Representatives recently passed a bill called the “Preventing Greater Uncertainty in Labor-Management Relations Act,” by a 219-209 vote, which would completely shut down the NLRB because of the D.C. Circuit Court’s decision. The bill states that unless the Supreme Court overturns Noel Canning, “The Board shall not appoint any personnel, nor implement, administer, or enforce any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012, that requires a quorum of the members of the Board.” The Senate is not expected to agree and the House Bill will remain largely symbolic.
Unfortunately, Noel Canning is not symbolic; it is allowing employers to flagrantly violate the law to the detriment of workers and unions. Thirty-five NLRB cases are now on hold in the D.C. Circuit Court, the validity of 600 NLRB decisions is questionable, and employers have now gone into every Circuit Court in the nation to argue that the court dismiss the NLRB’s action to enforce its decision against the employer. In a dramatic example of what Noel Canning means to American workers and unions, the United States District Court for New Jersey recently administratively dismissed the petition of the NLRB’s Newark, New Jersey, Regional Office seeking an injunction requiring that Somerset Valley Rehabilitation and Nursing Center reinstate the nurses it fired for union activities. The administrative dismissal permits the NLRB to return to the NJ District Court following a decision by the Supreme Court overturning Noel Canning, but in the meantime the illegally discharged workers remain out of work.
Larry Cary is a partner in the New York law firm of Cary Kane LLP and has represented unions for 30 years.