A federal appeals court sided with the Koch brothers in ruling today that President Obama's recess appointments to the National Labor Relations Board are unconstitutional. Obama's appointees had sided with the Teamsters in a dispute with a Washington state bottler.
Two groups linked to the
Two Democratic congressmen predict the decision will be overturned. Reps. George Miller (D-Calif.), the senior Democratic member of the House Education and the Workforce Committee, and Rob Andrews (D-NJ), the ranking member of the Health, Employment, Labor, and Pensions Subcommittee, issued the following joint statement:
Today’s decision flies in the face of precedent and past practice. It radically undermines the ability of any president – Democratic or Republican – to staff critical government positions when another party engages in political obstructionism. We disagree with these judges’ distorted view of the Constitution and their attempt to reshape the recess appointment power in a way that, if accepted, would render invalid hundreds of past appointments by previous administrations. We expect that this decision will not stand.
The American people deserve a fully functioning government, and they deserve a fully functioning National Labor Relations Board, which is critical to working families’ economic security and stable labor relations throughout our economy. It is time the legal gamesmanship and political obstruction in the Senate end so that Presidential nominations for this agency and others can be considered and voted on.The suit was brought by Noel Canning after the NLRB agreed with Teamsters Local 760 that the company had reneged on its contract.
The Wall Street Journal reported in April:
The bottler, Noel Canning, a division of Noel Corp. of Yakima, Wash., is appealing an NLRB order that it must adopt a collective-bargaining agreement it says it never signed off on. Union negotiators from the Teamsters local 760 said they had reached a verbal contract with management and that management reneged on it.
The union filed a charge of unfair labor practices with the NLRB. An NLRB judge and the labor board sided with the union, saying that federal law makes the verbal agreement the union cited "valid and enforceable."
In bringing its lawsuit, the bottler has made the unusual argument that Mr. Obama's decision to install the three new board members using so-called recess appointments meant the board lacked the authority to intervene in the dispute with the Teamsters.Unsurprisingly, the Koch-linked groups were silent when President George W. Bush made seven recess appointments to the NLRB. These are the seven, according to a Talking Points Memo story in February 2010:
Peter J. Hurtgen (R) served under recess appointment by President Bush from 8/31/01 - 8/1/02.What next?
Michael J. Bartlett (R) served entire term under recess appointment by President Bush. 01/22/02 - 11/22/02
William B. Cowen (R) served entire term under recess appointment by President Bush. 01/22/02 - 11/22/02
Peter C. Schaumber (R) served under recess appointment by President Bush from 9/1/05 - 8/3/06
Ronald E. Meisburg (R) served under recess appointment by President Bush from 01/12/04 - 12/08/04.
Peter N. Kirsanow (R) served under recess appointment by President Bush from 01/04/06 - 12/31/07
Dennis P. Walsh (D) serving under recess appointment by President Bush from 01/17/06 - present.
The ruling by the U.S. Court of Appeals for the D.C. Circuit will now likely be appealed to the U.S. Supreme Court, but has the potential to also affect Obama’s concurrent appointment of Richard Cordray to lead the Consumer Financial Protection Bureau. It could also invalidate every ruling by the NLRB during the period between January 4, 2012 and today, as well as many actions by the CFPB during that break. The opinion is the latest demonstrations of the radical views of Judge David Sentelle, who authored this opinion and has previously suggested that all business, labor and Wall Street regulation is constitutionally suspect.Stay tuned.