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Tag Archives: NLRB

The looming fight over recess

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

NLRB back to full staff, but with one member snub

Just days after a U.S, Supreme Court’s ruling demonstrated the danger of having an understaffed National Labor Relations Board, Tuesday the Senate confirmed two of President Barack Obama’s nominees to the Board: Democrat Mark Pearce and Republican Brian Hayes. That brings the Board to a full five operating members for the first time since 2007.

But the Senate did not confirm Obama’s third nominee to the board, former labor union lawyer Craig Becker, whose nomination sparked heated opposition from some Republicans and business groups who expressed fear that Becker would use Board rulings to usher in a “card check” union voting rule on an administrative level. Such a rule would allow employees to organize by a show of card instead of a secret balloting process. Legislation that would have authorized the change stalled in Congress last year.

Becker was installed on the Board in March as a recess appointment.

Yesterday the Senate confirmed Obama’s nominees for more than 60 posts ranging from judgeships to U.S. attorneys to agency positions.

NLRB chair reacts to Supreme Court decision

National Labor Relations Board Chairman Wilma B. Liebman has issued a statement in response to today’s Supreme Court ruling in New Process Steel v. NLRB that the Board lacked authority to act with only two members, as it did for more than two years.

“When the Board went to two members in January 2008, Member [Peter C.] Schaumber and I made a difficult decision in difficult circumstances,” said Chairman Liebman. “In proceeding to issue decisions in nearly 600 cases where we were able to reach agreement, we brought finality to labor disputes and remedies to individuals whose rights under our statute may have been violated.  We believed that our position was legally correct and that it served the public interest in preventing a Board shut-down. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

Court rules in NLRB, sexting, crack sentencing cases and more

In a ruling that could lead to the invalidation of hundreds of National Labor Relations Board rulings over a two-year period, U.S. Supreme Court ruled this morning that the Board requires at least three members in order to exercise its authority.

From January 2008 until March 2010, the Board operated with only two members, issuing hundreds of rulings despite the National Labor Relations Act’s three-member quorum requirement. Before the Board’s membership fell to just two – due in part to the inability of nominees to get confirmed by Congress – the Board delegated authority to a two-member quorum in order to continue operating. The Board operated that way until March, when President Barack Obama made recess appointments to several agencies including the NLRB.

But the Court, in a closely-split ruling in New Process Steel, L. P. v. NLRB authored by Justice John Paul Stevens, said two is not enough.

That ruling was one of five cases handed down by the Court today.

The Court also held that a city’s search of the contents of text messages sent by police officers on city-issued mobile devices was reasonable. In the highly anticipated case City of Ontario v. Quon, the Court held that the city’s search of sexually explicit text messages sent between a SWAT team member and the woman with which he is having an affair did not violate the Fourth Amendment, reversing a 9th Circuit ruling to the contrary.

In Dillon v. U.S., the Court ruled that its holding in U.S. v. Booker does not give courts the authority to depart downward beyond already reduced federal sentencing guidelines for a crack cocaine offense.

In the bankruptcy case Schwab v. Reilly the Court held that an estate may retain value in the equipment beyond the value of the exempt interest if the exemptions were properly listed on Schedule C and they fell within the range the bankruptcy code allows.

And in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection, the Court upheld a beach anti-erosion program that allowed sand to be added to a shoreline and creating strips of public beach over the objection of private beach land owners.

Much, much more on to come on this very busy day at the Court. Stay tuned to this blog and on Lawyers USA online.

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

Potential roadblock for NLRB nominee

UPDATE: Becker’s nomination was blocked in the Senate Tuesday afternoon. The lawmakers voted 52-33 to move forward with Becker’s nominatoin, short of the 60 needed to overcome a filibuster.

Today Senate Republicans, fresh off the addition of a 41st member in Massachusetts Sen. Scott Brown, may test their filibuster power on one of President Obama’s nominees for the National Labor Relations Board.

Members of the Senate are set to take a procedural vote on Craig Becker’s nomination, which would fill one of three vacancies that has hamstrung the normally five-member agency. It takes 60 votes to end debate over Becker’s nomination and send it to a full vote. But if Republicans join in opposition, that number won’t be reached.

Even Sen. Ben Nelson, a conservative Democrat, said he would join GOP members in voting no on Becker.

“Mr. Becker’s previous statements strongly indicate that he would take an aggressive personal agenda to the NLRB, and that he would pursue a personal agenda there, rather than that of the administration,” Nelson said in a statement.

Some lawmakers cite legal writings by Becker supportive of measures such as card check elections. The U.S. Chamber of Commerce has been vocal in its opposition. But Sen. Tom Harkin, chairman of the Senate Health, Education, Labor and Pensions Committee, said the criticism is unwarranted, a single NLRB member couldn’t implement such massive changes to the labor law system even if he wanted to.

“I don’t have any illusions that those important changes can somehow be accomplished administratively and neither does Craig Becker,” Harkin said.

Brouhaha over Becker’s NLRB nomination

While nominees to the National Labor Relations Board have historically faced a low key and drama-free road to confirmation, recently it seems nothing involving the NLRB is without controversy. And the nomination of Craig Becker, President Barack Obama’s pick to fill one the three vacancies on the Board, is no exception.

As you know, the normally five-member board has operated with only two members for more than two years. And the validity of opinions the Board has issued since January 2008 are now in question, and the Supreme Court is set to decide if the rulings were made by a properly constituted quorum.

President Bush’s nominees to fill the vacancies stalled in the Democratic-controlled Senate. And now Becker’s nomination is facing strong opposition by Republicans and business groups who say the former attorney for the Service Employees International Union and AFL-CIO would usher in anti-business policies.

As Becker appeared at a hearing held on his nomination yesterday – the first time in 17 years that a hearing has been called to vet a NLRB nominee – The U.S. Chamber of Commerce blasted Senate Democrats, accusing them of trying to jam Becker’s nomination through before the Senate’s newest Republican, Sen.-elect Scott Brown, is seated.

“For the first time since 1993, the Chamber is taking the unusual step of opposing a nominee to the NLRB,” said a statement from Randel K. Johnson, the Chamber’s vice president for Labor, Immigration, and Employee Benefits. “It would be an egregious mistake and would set a dangerous precedent for the Senate to push this nomination through during a lame-duck period. The NLRB has the ability to unduly increase union power and leverage it without intervention by Congress. Confirming Becker will tilt the balance in labor law dramatically in favor of union special interests.”

Sen. Tom Harkin, the Democratic chairman of the Senate committee vetting Becker’s nomination, said Democrats have given GOP members what they want.

“We are here, today, to take the rather unusual step of holding a hearing on a nominee for the National Labor Relations Board,” Harkin said at the hearing.  “It has not been the standard practice of this Committee to hold hearings on NLRB nominations…However, my colleagues on the other side of the aisle have requested a hearing.  And while I am reluctant to further prolong the consideration of an obviously well-qualified nominee, I was willing to accommodate that request because I think the work of the NLRB is tremendously important and deserves this Committee’s attention.”

But Republicans including Sen. John McCain grilled Becker over issues such as card check elections and how Becker would handle cases involving the unions he worked for in the past.

Becker said he would rule fairly and recuse himself when necessary. “I will abide, Sen. McCain, with the terms of that pledge scrupulously, and as I indicated, if any other matters come up outside of the scope of that pledge where any party might think that I might not be impartial, I will consider the matter…. and if necessary recuse myself from those cases,” he said.

“That’s not good enough,” McCain replied.

Fate of hundreds of NLRB rulings rests with Supreme Court

For nearly two years, the normally five-member National Labor Relations Board has operated with only two members. The vacancies, caused when former President Bush’s nominations to fill vacancies on the Board languished in Congress, forced the Board to take an unusual step under the advice of the board’s general counsel. The Board declared that two members create a quorum, enabling the two members to continue issuing opinions while waiting for the remaining slots to be filled.

Since then the Board has issued more than 400 opinions.

But yesterday the U.S. Supreme Court agreed to consider whether the two-member Board had the authority to continue to operate, throwing the validity of all those opinions in doubt. The split in the circuits on this issue has created a conundrum for labor lawyers.

President Obama sent three nominations to the Senate to fill the empty seats in July, and last month the Senate HELP committee advanced the nominees for full Senate consideration.

Monday status conference: Stevens says he’s no spring chicken

Ever since news broke that Justice John Paul Stevens had only hired one clerk so for the October 2010 Supreme Court term, speculation has swirled over whether the justice – who is now the second oldest to hold a seat on the bench, and the fifth longest-serving justice ever – would retire.

USA Today‘s Joan Biskupic put the question right to him. And while he declined to discuss his retirement plans, he answered the question of whether retirement was a possibility with a resounding: Duh!

“That can’t be news,” Stevens, 89, said. “I’m not exactly a kid.”

Biskupic’s very interesting profile of Stevens can be found here.

Meanwhile, let’s open the week with stuff that actually is news:

Sticking to the script: Justice Sonia Sotomayor said her confirmation process was so carefully scripted, here her clothes were picked out for her. (The New Haven Register)

Strange allies: Might medical device manufacturers, who have refused to offer direct financial concessions to help pay for health-care reform, have an ally in their home state lawmaker – Minnesota Democrat Sen. Al Franken? (The Washington Post)

New pot policy: Federal prosecutors will no longer go after medical marijuana users and suppliers as long as they conform to state laws, under new Obama administration policy. (Associated Press)

HELP for NLRB nominee: Despite calls from the U.S. Chamber of Commerce to hold a hearing on NLRB nominee Craig Becker, the Senate Committee on Health, Education, Labor and Pensions is scheduled to vote on his confirmation Wednesday. (WSJ’s Washington Wire)

Cruisin’ for Congress: Federal legislation navigating its way through Congress is aimed at improving safety measures and the reporting of crimes on passenger cruise ships. But lawyers who represent injured passengers and crew members say the legislation doesn’t do enough to address legal loopholes in litigating injury cases against cruise lines. (Lawyers USA)

Another firefighter suit: A black New Haven, Conn., firefighter has filed a federal lawsuit against the city over a promotion exam that was the subject of the U.S. Supreme Court’s landmark ruling in Ricci v. DeStefano in June. (Lawyers USA)