Got an interesting email today from a reader who pointed out that the appellate court specifically ruled in the NLRB appointments case, Noel v. Canning, that Congress was not in recess when President Barack Obama appointed new members to the National Labor Relations Board on Jan. 4, 2012.
The Congressional calendar shows that Congress was in session on Jan. 3, but not on Jan. 4 and 5. Congress returned to work on Jan. 6.
The reason the timing needs to be so precise is that the case, Noel Canning versus the NLRB, has caused a ruckus in employment law. The decision essentially throws out an National Labor Relations Board ruling in the case on the grounds that the board did not have the proper quorum to decide the case, because of the timing of Obama's appointments.
"...The president made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception," the judges in the U.S. Court of Appeals for the District of Columbia wrote.
Although the decision applies just to this case, which favored the workers, employment lawyers are questioning whether every NLRB decision since January 2012 is now invalid. The NLRB says the Noel Canning decision, now on appeal to the U.S. Supreme Court, is just limited that one case involving Noel Canning, a Pepsi bottling company in Washington state, and its union, the International Brotherhood of Teamsters. Meanwhile, the NLRB is continuing to decide cases.
All this came up as I was doing my research into a story I wrote about Dennis Walsh, a former NLRB national board member who now heads the regional office that supervises union elections and protects workers in southern New Jersey and eastern Pennsylvania.
Walsh made an interesting point about these nominations. Unlike some other boards, there is no provision for a term extension when an NLRB seat becomes vacant. In some other boards, there is legislation that allows the person to stay on until a replacement is sworn in. But for the NLRB, a vacant seat is vacant. If there are fewer than three members, the NLRB can not rule on cases.
The original legislation was set up very sensibly. Each of the five members of the five-member board was appointed to a five-year term, and one term came up every year. In theory, it should have been a simple matter for the President to make an annual nomination and for the Senate to confirm the nominee. That way, there would be sufficient board turnover to reflect changes in the Washington milieu, but also there would be some degree of institutional knowledge.
Instead, Walsh said, for whatever reason (and Walsh was quite adept at expressing this all very neutrally), presidents have delayed nominations and the Senate has delayed confirmations. What happens then is that the nominations bunch up, he said, and then, politics intervene. And because the five-year clock keeps ticking, the terms, theoretically for five years, end up being shorter, causing more frequent upheaval.
Lately, the president nominated two more members, both Republicans. It's unclear when or if the Senate will "advise and consent," as it is required to do. In the meantime, though, workers are left in flux -- ironic when this is the law that is supposed to protect them.
Click here to read about how Rutgers-Camden law professor Michael A. Carrier influenced the case and here to read Monday's blog post on how unions and management should stop being so afraid of one another.