Tuesday, February 5, 2013
Michael Goldberg (Widener (Wilmington)) has posted a brief analysis in Labor Notes on the DC Circuit's recent decision in Noel Canning, which found the 2012 recess appointments to the NLRB by President Obama to be unlawful.
After discussing the decision, Michael points out that the combination of the lack of filibuster reform in the Senate and the narrow reading of what it means for there to be a "recess," means that the Board will have a exceedingly difficult time having its orders enforced until it has at least three Senate-confirmed members or the Noel Canning decision is overturned by en banc or US Supreme Court review.
This is because Section 10(f) of the NLRA allows any employer to appeal an adverse Board decision to the DC Circuit (which will find such orders to be null and void) and because it is unlikely that Senate Republicans will permit any NLRB nominee through, regardless of their merits, since they can effectively shut down a federal agency they have no love for by not confirming anyone.
Labor relations law in the United States has reached Kafka-esque proportions.
In any event, read Michael's entire Labor Notes piece.