On March 1, 2013, LabCorp filed suit against the National Labor Relations Board (NLRB) claiming the NLRB lacks the statutory authority to enforce “…or to require, conduct or certify a union election on behalf of patient service technicians and patient center site coordinators employed by LabCorp in northern New Jersey.” This suit directly relates to the Noel Canning v. NLRB decision handed down on January 25, 2013 by the US Court of Appeals for the District of Columbia.
First some background.
The appellate court in the Noel Canning case decided President Obama’s recess appointments of two people to the NLRB were invalid as the appointments did not occur during a constitutionally-recognized Senate recess. The NLRB consists of five members and members must be confirmed by the Senate. At the time of the appointments, there was only one Senate-confirmed member on the NLRB and four vacancies. The NLRB needs at least three members to function.
Now that the appointments have been deemed improper, the NLRB has been reduced once again to only one member, and cannot conduct business.
Now back to the LabCorp case. At the end of January 2013, the National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO (District 1199J) petitioned the NLRB to be named the exclusive negotiator for patient service technicians and patient center site coordinators employed by LabCorp in eight counties in northern New Jersey. LabCorp objected at the time, claiming neither the NLRB nor its designees were empowered to order or certify the results of a union election since it lacked a quorum.
On February 26, 2013, a month after the Noel Canning decision was handed down, a regional director of the NLRB issued a Decision and Direction of Election. LabCorp argues in its complaint that although regional directors of the NLRB are usually empowered to make decisions such as these, the source of the regional director’s authority is the NLRB board. And since the NLRB lacks a quorum, the regional directors therefore have no statutory authority either.
LabCorp simply seeks to make the point the NLRB in its current form is powerless, to prevent the NLRB from enforcing its Decision and Direction of Election and any additional relief the court deems just and proper.
Commentary
The NLRB, since Obama made the recess appointments in January 2012, had already ruled on over 200 labor disputes, according to an NLRB spokesperson, and these decisions are now up in the air with respect to legitimacy. In addition, there are cases currently pending in 9 of the 12 circuit courts that challenge actions of the NLRB since Obama’s appointments. It’s a mess.
The Justice Department has until this Friday (March 8) to decide if it will appeal the Noel Canning case to the full D.C. Circuit Court and until April 25, 2013 to decide if it will appeal to the US Supreme Court.
The Noel Canning decision overturned over two centuries’ worth of executive branch precedent regarding recess appointments. While the decision only impacts recess appointments Obama has made, the use of intrasession recess appointments is hardly limited to him.
According to the Washington Post:
George W. Bush was the biggest fan of the intrasession appointment, with 141 such nominations. Reagan made 72, George H.W. Bush made 37; Clinton had 53, and Obama 26.
While some hail the Noel Canning decision, others worry what the decision, if upheld upon appeal, will mean for President Obama and future presidents. This is because it is taking longer and longer for the Senate to confirm nominees.
The Congressional Research Service looked at how much time was required for uncontroversial Circuit Court and District Court nominees to achieve Senate confirmation during Reagan’s presidency and compared it to Obama’s:
Uncontroversial Circuit Court Nominees
-For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency.
-The percentage of uncontroversial circuit court nominees waiting more than 200 days from first nomination to confirmation increased from 5.1% during the Reagan presidency to 63.6% during the Obama presidency.
Uncontroversial District Court Nominees
-For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.
-The percentage of uncontroversial district court nominees waiting more than 200 days from first nomination to confirmation increased from 6.6% during the Reagan presidency to 54.7% during the Obama presidency.
If this decision stands, it is entirely possible large numbers of very important executive and judicial branch positions could easily go unfilled for at least 8 months, and that is if the nominee is not controversial. If controversial, who knows how long it would take?
LabCorp’s complaint against the NLRB is here.
The gist of this article seems to indicate that the author questions the ability of the government to conduct business if the executive branch wishes to appoint a “controversial” person to a position of governmental power and how the government will be able to function if the executive branch does not have this power. I recommend that the author reread the constitution as well as the Federalist Papers to rediscover why we have a government that is designed to have checks and balances and not a rule by fiat. The Senate is elected by the citizens of each state which allows that the citizens of one state have the same value of as the citizens of another state. This allows the property of the citizens of one state to be protected from the wants and desires of the citizens of another state simply by voting. The president wishes to appoint members to the NLRB then he must adhere to the Constitution and the law of the land, its as simple as that. If he fails to adhere to the Constitution then he is no longer fit to lead.
Thank you very much for the comment.
The primary gist of the article is actually that LabCorp has sued the NLRB.
The subsidiary gist is that it is becoming more and more difficult to confirm even uncontroversial people to positions that require Senate approval.
The Senate, which is indeed composed of men and women elected by ordinary citizens of their state (although that was not the case until the 17th amendment), in addition to the function you named, also has the responsibility of providing advice and consent of presidential nominees. As the CRS data showed, the Senate has not excelled at that task in recent years, and many important government positions have gone unfilled for long periods of time, hence the usage of recess appointments by presidents of both parties.
As the CRS data also showed, President Obama was not the first to avail himself of what was, until recently, common executive practice.
The Noel Canning case has not yet completed its trip through the judicial system, and I would submit it is too early to say whether intra-session recess appointments are, as you put it, ruling “by fiat”, or simply one court’s mistaken opinion.
If the en banc DC Circuit Court or the Supreme Court upholds the decision, it will be interesting to see how both Obama and future presidents contend with an increasingly obstinate Senate.
If the president, regardless of his political affiliation, cannot recess appoint people to positions, and the Senate will also not confirm appointments, then things could get very difficult.
Thanks again for the comment.