NRCA issues statement applauding ruling on NLRB recess appointment
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 Senatenot
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.