Womack measure would silence labor relations board

Under legislation filed by Arkansas’ U.S. Rep. Steve Womack, the federal government’s labor referee would be prohibited from offering opinions until the nation’s high court decides whether members of the National Labor Relations Board were legally appointed by President Barack Obama.

The dispute over the board concerns the validity of recess appointments, which are made when the Senate - which confirms federal judges, Cabinet members and high-ranking members of the federal government - is not in session.

To conduct business, the five-member labor board must have a three-person quorum. On Jan. 4, 2012, Obama nominated three members to the board.

This January, a three-judge panel of the U.S. Court of Appeals for the District of Columbia found in Noel Canning v. NLRB that the appointments were unconstitutional because the appointments were not made when the Senate was in recess.

Womack called the board, which has made more than 200 decisions since January 2012, “illegitimate.” His legislation would prevent enforcement of any decision the board has made since the Obama appointments and halt any new decisions until the Supreme Court makes a ruling, which would be in June 2014 at the earliest.

“People were placed on the board without going through the proper process,” Womack said. “Washington has gotten away from regular order.”

Womack represents the district where Wal-Mart Stores Inc. - which frequently argues cases before the labor relations board - is headquartered. Wal-Mart declined to comment for this article.

Republican critics contend that under Obama, the labor board has shown a pro-labor bias. Democrats say Republicans have blocked Obama’s nominees in the Senate, forcing him to make recess appointments. They argue that Noel Canning v. NLRB is a further attempt to de-fang the federal agency.

Womack said he did not file his legislation because he disagrees with the board and its decisions.

“My bill is not geared toward specific people,” Womack said.“My bill is about honoring a decision made by the court.”

The board’s general counsel, Lafe Solomon, a native of Helena and a recess-appointee, did not return calls seeking comment. Nancy Cleeland, the board’s spokesman, declined to comment on the case, saying only that the board will continue its work and that its Supreme Court petition will be filed by April 25.

Labor law experts said it is likely that the court will take up the case. Similar cases are pending in at least five appeals courts.

Much of the January appeals court decision hinged on the definition of a Senate recess.

In its written brief submitted to the court, the labor board argued that the Senate had “declared itself closed for business” between Jan. 3, 2012, and Jan. 23, 2012, by unanimously agreeing to “recess.”

“During that period, no legislation was passed, no votes were held, and no nominations were considered,” the brief stated, adding: “Indeed, nearly all Senators had departed the capital for their yearly winter break.”

The appeals court’s decision rested on the meaning of the word “the,” in the first part of the Constitution’s recess appointment clause, which gives the president power to fill vacancies without Senate approval during “the Recess” of the upper chamber.

The court found that when the nation’s founders referred to “the Recess,” they meant the “intersessional” recess - the long breaks that usually occur between sessions of Congress, not other temporary breaks throughout the year.

“As a matter of cold, unadorned logic,” the decision states, “it makes no sense to adopt the Board’s proposition that when the framers said ‘the Recess,’ what they really meant was ‘a Recess.’ This is not an insignificant distinction.”

John Raudabaugh, who was a George H.W. Bush appointee to the Natonal Labor Relations Board, said the recess appointments called into question decisions made by regional directors put in place by the board since Obama’s appointments. Also in doubt, Raudabaugh says, is the validity of 1,439 rulings made by Obama recess appointees.

Raudabaugh said a Supreme Court ruling against recess appointments would undermine the legitimacy of more than 300 recess appointments made by Obama, Bill Clinton and George W. Bush over the past two decades.

“It is a real mess,” he said.

However, Raudabuagh said the labor board appointments were an unconstitutional power grab by the president.

“The executive branch can’t end-run the legislative branch, except in very specific circumstances,” he said.

John Logan, a labor lawyer at San Francisco State University, called the appeals court decision’s focus on the word “the” a “tour de force of textualism” in the application of law that ignored historical precedent.

“They’re telling the labor board to pack its bags and go home,” he said.

But Logan pointed out that some of the board’s actions in the past year have benefited companies, including Wal-Mart.

For instance, in January the board mediated a settlement between the United Food and Commercial Workers International Union and the Bentonville retailer that ended the threat of union members’ pickets outside Wal-Mart stores.

And Solomon, the board’s general counsel, issued a memorandum that credited Wal-Mart with creating a model policy governing employees’ use of social media sites, including Facebook.

“Business as well as unions want clear guidelines and want certainty,” he said.

Tossing out 1,439 labor board rulings would create a great deal of uncertainty, he added.

Front Section, Pages 1 on 03/18/2013

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