Tuesday, February 5, 2013

Goldberg on Noel Canning Recess Appointment Decision in Labor Notes

GoldbergM300x266Faculty_de.ashxMichael 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.



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And yet ... not a word about the fact that even the Senate did not consider itself "in recess" when these appointments were made. Or that Harry Reid initiated the practice of pro forma sessions in order to prevent George W. Bush from exercising the recess appointment power as it had come to be understood during the last two years of his term.

I'm curious: Does anyone remotely pretend that this is dispassionate academic analysis? Or is this yet another advocacy piece just coincidentally written by someone in academia?

Posted by: James Young | Feb 5, 2013 2:47:18 PM

At least three Senate-confirmed associates or the Noel Canning choice is overturned by en banc or US Superior Judge evaluation.

Posted by: Mother Toddler | Feb 5, 2013 11:16:10 PM

John Reid started the practice of pro form a classes to avoid Henry W. Shrub from exercising the break consultation power as it had come to be recognized.

Posted by: Mother Toddler | Feb 6, 2013 1:22:46 AM

Noel Canning did not reject Obama's recess appointments on the grounds James Young mentions. If it had, the consequences of the decision would be far less serious. Not only did the court very narrowly define when a recess occurs, but two members of the court also held that the vacancy itself has to occur during the recess, not simply be continuing through one.
-- Michael Goldberg

Posted by: Michael Goldberg | Feb 6, 2013 7:40:36 AM

Why can't the NLRB seek enforcement under 10(e) in the circuit where the unfair labor practice occurred (i.e., not the D.C. Circuit) before the employer files a petition for review under 10(f), thereby beating the employer to the courthouse?

Posted by: person | Feb 6, 2013 8:20:30 AM


The Noel Canning decision did not address whether the pro forma sessions count for purposes of Recess Appointments. You know that, so why do you bring that up?

To me there are several issues: 1) whether the DC Circuit's decision is wrong when it held that Recess Appointments are only constitutional when the vacancy occurs during a Recess and that a Recess only exists between seperate sessions and not intrasessionally (like in August); 2) if the DC Circuit's holding is reversed it seems to me that it should be remanded to determine if pro forma sessions are enough to cancel the Recess. Perhaps, the Supremes can better define a "Recess."

Everyone knows that Harry reid started the practice, but just because Bush did not call the bluff (if it was a bluff) means nothing in the analysis.

Posted by: Per Son | Feb 6, 2013 8:27:40 AM

This is interesting: http://democrats.edworkforce.house.gov/sites/democrats.edworkforce.house.gov/files/documents/112/pdf/Recess%20Appointments%201981-2013.pdf

If the DC Circuit is correct then over 300 appointments since 1981 were unconstitutional.

Posted by: Per Son | Feb 6, 2013 8:47:08 AM

Person: The NLRB could seek enforcement in other circuits if it wants, but the appellate court branch has a practice of not doing so and letting the losing party have the first crack at an appeal. It comes mostly from the desire to avoid having a government agency look like it's cherry picking circuits, even though parties obviously do that all the time. I discuss this some in the following pre-Noel Canning article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1660215), and have mentioned it as something the NLRB might consider if this drags on for a while, although I'm generally supportive of the current practice.

Posted by: Jeff Hirsch | Feb 6, 2013 9:50:10 AM

Uh, Michael Goldberg and "Per Son": I didn't suggest that it did. I was addressing Mr. Goldberg's specific failure to mention how we got here and his plainly partisan effort to blame Senate Republicans. To be sure, "Per Son," "Everyone [who follows these issues] knows that Harry reid started the practice," but given the significance of this decision, it is subject to widespread commentary, and too many commentators in the general media ignore that fact in a considered effort to lay blame for the pitfalls of this decision at the feet of Senate Republicans. Those who know what "everyone knows" cannot legitimately do so, since the hypocrisy of much of that commentary would become readily apparent.

Posted by: James Young | Feb 6, 2013 6:45:03 PM

Oy. It is not "plainly partisan" to blame Senate Republicans for filibustering Obama's nominees, unless the truth is somehow partisan. It would be false (and partisan, I suppose) to blame Senate Republicans for filibustering Bush's nominees.

As for his "failure to mention how we got here"... he "failed to mention" it because it is utterly irrelevant to the D.C. Circuit's decision, which the author of the piece is, notionally, analyzing. The D.C. Circuit did not even so much as address the issue of pro forma sessions, much less find it dispositive.

You seem, based upon your comments to this thread and the Estreicher thread, to be laboring under the impression that any piece of writing which does not play out a series of patently irrelevant tangents in an effort to seem "balanced" is somehow partisan. That style of writing is not "objective," it's just lousy.

Posted by: Anon | Feb 6, 2013 7:48:52 PM

Uh, "Anon," it's no more or less irrelevant than Obama's justification for making those appointments. Mentioning that, and suggesting that he was somehow justified in his response suggests that it is the tactic itself which is illegitimate. And suggesting that it is illegitimate when Republican do it, without mentioning that Democrats pioneered it, is both plainly partisan, and outrageously dishonest.

Posted by: James Young | Feb 7, 2013 4:12:14 PM

Has anyone written anything about all the stuff that employers and Republicans don't like that could happen if the NLRB can't function? There would be no one to (threaten to) stop the picketing of Wal-Mart, all sorts of secondary actions could take place without restriction, etc. A lot of this assumes that the logic of Noel Canning deprives the GC of his authority to do 10(l) stuff in the courts (I think there's a good argument it doesn't, but who knows what a court would say), but I think it's worth knowing. Unions should take full advantage of a non-functioning Board if only to make the obstructionists in Congress reap what they've sown.

Posted by: anon | Feb 7, 2013 5:01:38 PM

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