Federal appeals court ruling calls into question NLRB decisions since 2012

Posted: April 23, 2013

With two school-age children, Rutgers-Camden University law professor Michael A. Carrier hears a lot about recess.

"I'm a big fan," said Carrier, who teaches in Camden. "Recess is so underrated."

But not in the District of Columbia, where an appellate court has upended the National Labor Relations Board with a recent decision that hinges on the definition of recess - whether a president, in this case Barack Obama, can appoint members to the board during a U.S. Senate recess.

Interestingly, the decision cited Carrier's work as a second-year law student writing for the University of Michigan Law Review when he was on recess from law school - doing a clerkship for the U.S. Senate Judiciary Committee.

"I think the court's decision doesn't leave much room for recess appointments at all," said Carrier, 44, of Philadelphia. His specialty now is antitrust law, a discipline far removed from the constitutional issue involved in the NLRB case.

In Noel Canning v. the NLRB, Teamsters Local 760 of Yakima, Wash., thought the union had reached a contract agreement with the employer, Noel Canning, a bottler and distributor of Pepsi-Cola.

But there was a disagreement, and the union went to the NLRB asking it to force the company to follow through with the contract.

The NLRB agreed with the union. The employer appealed, and the case went to the U.S. Court of Appeals for the District of Columbia.

The appellate judges, ruling on Jan. 25, did not overturn the NLRB's conclusion based on the facts involving the contract.

Instead, they overturned it based on another issue, raised by the employer. Noel Canning said the NLRB's decision was invalid because it did not have a quorum of members appointed by the president and affirmed by the Senate, as required by law.

Three of the four NLRB members who decided the Canning case on Feb. 8, 2012, were Obama's "recess" appointments, named to the position three weeks earlier.

Now there's debate over whether any NLRB decisions since January 2012, when Obama made his recess appointments, are valid. The NLRB, which says the decision applies only to the Noel Canning case, asked the U.S. Supreme Court to take up the issue.

The appellate decision cited Carrier's 1994 research into the intent of the U.S. Constitution's framers, who allowed the president to make appointments when Congress was in recess, under certain circumstances.

The decision distinguishes between the recess, the period between late December and early January when members of Congress return home for the holidays, and recesses, a temporary stopping of their work, perhaps for a holiday weekend.

The recess is called the "intersession" recess; the others are known as "intrasession" recesses. In the 47-page decision, Carrier's research appears on page 20, noting that no president tried to make an intrasession appointment for 80 years after the Constitution was written.

These days, Carrier said in an interview, "you don't have a situation where the senators are on horseback and can't get back to Washington when an emergency arises."

The politics are such in Washington, he noted, that it is difficult for any NLRB appointee to get nominated or approved, with the result that vacancies on the NLRB, which safeguards workers' rights, remain unfilled for years.

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