For Labor Law, Tis The Season For Noel

By Geoffrey Burr

On Wednesday, a three-judge panel of the U.S. Court of Appeals will hear oral arguments in a case called Noel Canning v. NLRB. Beyond its potential impact for constitutional separation of powers, the outcome is crucial to the future of labor relations at millions of American workplaces.

The panel's decision in the case promises to be the first of many judicial rulings in the inevitably protracted legal drama over whether President Obama can circumvent the Senate's constitutional role in confirming (or blocking) the president's nominees. The drama began earlier, when the president decided on Jan. 4 to bestow on organized labor a belated and rather extravagant holiday gift by unlawfully appointing three nominees to the National Labor Relations Board under the Recess Appointment Clause in the Constitution and, thereby, avoiding the Senate confirmation process. The Clause permits appointments of a limited duration without Senate confirmation when Senate is in recess. The trouble is, on Jan. 4, the Senate was still in session.

The president's maneuver has been the gift that keeps giving for organized labor, with the Board's majority pushing through the union bosses' wish list throughout the year. Employees, employers, and the economy, however, have received a collective a lump of coal as the Board's decisions have trampled worker and business rights, and the illegal recess appointments have injected further uncertainty into labor relations.

The Noel Canning suit is only one of at least a dozen pending legal challenges in federal courts to Board decisions issued by the recess appointees. Noel Canning's attorneys, along with those from the Coalition for a Democratic Workplace and U.S. Chamber of Commerce, who both have intervened in the suit, noted in their arguments that the Board cannot lawfully issue decisions because it lacks a quorum of three legally appointed members. Accordingly, all of the Board's actions since January 4, 2012, and all of the future actions of this quorum-less Board are without legal effect.

Several years ago, the Supreme Court held the Board needed at least three of its full complement of five members to issued decisions. As of Jan. 4 last year, the Board only had two members confirmed by the Senate: Chairman Mark Pearce (D) and Member Brian Hayes (R). Rather than work with senators to confirm a package of mutually acceptable nominees (one that left the Board balanced with two Republicans and two Democrats, for example), the president did an end-run around Senate confirmation and recess appointed Sharon Block (D), Richard Griffin (D), and Terence Flynn (R), while the Senate was still in session. Flynn has since left, leaving one legally appointed Democrat, one legally appointed Republican, and two illegally appointed Democrats.

The general problem of this constitutional clash is obvious; should the courts allow illegal executive appointments to stand, it will be a significant blow to the operation of our republic. If nothing else, there will be little future incentive for presidents to submit nominees through the traditional vetting and confirmation process and, consequently, there will likely be a higher number of controversial recess appointments in the executive and judicial branches driving special-interest agendas.

More specifically in this case, should the president's unlawful appointments to the NLRB stand, it will be a big, shiny gift under the tree for union bosses. While AFL-CIO boss Richard Trumka laughably claimed as recently as November 5 that the Employee Free Choice Act is in reach within the next term, much of organized labor's wish list remains viable through the NLRB if it can be packed with labor's pliant helpers. Indeed, it was the success of the president's highly controversial recess appointee, longtime union attorney Craig Becker, at driving an anti-employee and anti-business agenda that lead to the standoff between the president and the Senate over nominees in the first place. And, as expected, the unlawfully recess appointed Board majority has continued with Becker's agenda.

So whats on labor's wish list? A quick sampling: significantly restructuring the current elections process to reduce the ability of employers to talk to employees and for employees to access information prior to voting; eroding employers' private property rights to allow paid union organizers access to stores so they can intimidate and chase off consumers of businesses that refuse yield to union demands; opening up the possibility of swarms of micro-unions to cherry pick only pro-union employees and disenfranchise employees likely to oppose unionization; and forcing employers to plaster up notices that amount to advertisements to join a union.

While there will be much talk at today's oral argument about Noel and Clauses (Constitutional that is), to date the only ones reveling over the president's unlawful appointments have been organized labor. That may be short-lived, however, as the courts provide a check and balance on the president's actions. Hopefully, a decision striking down the recess appointments is forthcoming and with it an opportunity for a new start. Our country needs the president to work on a bipartisan basis with Congress to solve our problems -- not run roughshod over the Constitution to push a radical agenda the benefits a politically powerful special interest.

Geoffrey Burr is chairman of the Coalition for a Democratic Workplace, which represents over 600 employers, associations, and other organizations.

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