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Pro-Labor Decisions in Jeopardy

posted Feb 1, 2013, 6:30 AM by Allison Ayer   [ updated Feb 1, 2013, 10:50 AM ]
A recent ruling of a Federal Appeals Court has placed pro-union decisions made by the National Labor Relations Board (“NLRB”) in legal limbo.  In Canning v. National Labor Relations Board, The United States District Court for the District of Columbia ruled late last week that three “recess” appointments that President Obama made to the NLRB were unconstitutional.  
The Constitution allows presidents to temporarily fill vacancies in federal agencies like the NLRB during Senate recesses, and as a result bypass the Senate confirmation process.  Obama’s administration claims that the appointments were a proper pursuant to this Constitutional provision because they were made when the senate was on a lengthy recess.  The Court disagreed, and found the three “recess” appointments that bypassed the Senate confirmation process were illegal.  
The Court reasoned that presidents may bypass the confirmation process only during the type of recess that occurs between formal sessions of Congress (which usually occur only once a year or sometimes not at all) rather than during other, more abbreviated breaks of Congress like the ones occurring when President Obama made his appointments to the NLRB. 
The ruling was made in a lawsuit brought by a Pepsi-Cola bottler that challenged a NLRB decision against the company in a union labor dispute.  The Appeals Court’s ruling immediately invalidates the decision in the bottler’s case, but it also places all of the decisions of NLRB since Obama’s appointments in legal limbo.  Without these three appointments, the NLRB would have just one member, and would be short of the quorum necessary to issue rulings. 
If the Court’s ruling is upheld, the NLRB could be considered to not have had a quorum since January 2012 and the nearly 300 rulings the Board has made since that time could be challenged and nullified.  Among the decisions that could be vacated are recent rulings in which the NLRB ordered that companies could not issue blanket prohibitions what employees say on social networking sites like Twitter and Facebook. 
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