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NRCA issues statement applauding ruling on NLRB recess appointment

May 2013

NRCA applauds the May 16 federal appeals court ruling regarding a "recess" appointment made by President Obama to the National Labor Relations Board (NLRB). The ruling by the 3rd Circuit U.S. Court of Appeals, in a 2-1 decision, said that under the Constitution, recess appointments can be made only between sessions of the Senate—not any time the Senate is in recess. This ruling specifically invalidates the recess appointment of NLRB member Craig Becker in March 2010 (which NRCA opposed at the time). Becker has since departed from the board because his recess appointment expired at the end of 2011. If not overturned, this ruling potentially could invalidate many NLRB decisions dating back to the time of Becker's appointment in 2010.

This ruling is similar to another recent ruling by the U.S. Court of Appeals in Washington, D.C., that found additional recess appointments made by President Obama to the NLRB in January 2012 were unconstitutional in a case brought by the Coalition for a Democratic Workplace, of which NRCA is a member. The administration has appealed that ruling to the U.S. Supreme Court. It appears this second similar court ruling will increase the chances the Supreme Court will take up the issue sometime this fall and render a final decision.

Both Appeals Court rulings have threatened to throw the NLRB and several other federal agencies with recess appointees into chaos. If the rulings stand, hundreds of decisions by these agencies could be thrown out, reaching back several years.

NRCA represents union and non-union contractors and supports policies that maintain an equitable balance in labor-management relations. Although not involved in this particular court case, NRCA has been active in other litigation challenging the recess appointments to the NLRB and several regulations issued by the agency. NRCA will continue supporting policies and litigation that seek to maintain an equitable balance between labor and management in federal labor law.





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