POLITICS

Union cites George W. Bush in defending Obama recess appointments

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Politics,Beltway Confidential,Sean Higgins

In a letter to Congress, Edward Wytkind, the president of the AFL-CIO’s Transportation Trades Department, urged House members to oppose legislation that would effectively shutdown the National Labor Relations Board. In doing so, he cites a precedent by the  previous administration:

H.R. 1120, by the author’s own admission, is designed to support a recent Court of Appeals decision (Noel Canning) that calls into question the validity of President Obama’s recess appointments to the NLRB. The court would limit recess appointments to those made only in the recess between sessions of Congress and only for those vacancies that become open during the recess. Under the reasoning in Noel Canning, the President of the United States, for example, could not use the recess appointment clause to fill a vacancy during an August recess no matter when the vacancy occurred. This narrow reading of the recess appointment clause is contrary to the common and recent use of the provision by presidents of both parties and is inconsistent with a 11th Circuit case upholding the recess appointment of Judge William Pryor made by President George W. Bush. Other cases challenging the NLRB recess appointments are pending in other circuits and it is likely that these cases will produce results contrary to the decision in Noel Canning. (Emphasis added)

The bill in question passed a House panel in March. It is not expected to become law though since the Democrat-majority Senate is unlikely to take it up.

In writing about the NLRB situation, I’ve seen labor officials point out that Bush had made recess appointments as well. This is true. In addition to Judge Pryor, Bush most famously used this authority to appoint John Bolton as UN ambassador.

At the time, Bush’s recess appointees were denounced by Democrats, liberal groups, and editorial boards. The AFL-CIO also criticized Bush for making a recess appointment to the Labor Department. But Obama’s allies — at least those in organized labor — are now edging towards arguing that Bush had the right stance on recess appointees all along. Wytkind’s position is that the case upholding Bush’s appointment should stand.

Funny how these things change.

Generally overlooked in this debate is that Bush stopped making these appointments after Senate Majority Leader Harry Reid, D-Nev., moved to keep the Senate technically in session during its breaks. Obama’s NLRB appointees were made even though Republicans argued the Senate was technically still in session.

The full text of Wytkind’s letter is below. (It was emailed to me from his office. It is not online as far as I can tell):

Dear Representative:

On behalf of the Transportation Trades Department, AFL-CIO, I urge you to vote against H.R. 1120 – legislation that will essentially shut down the National Labor Relations Board (NLRB). This bill improperly involves Congress in the judicial review of the President’s recess appointment powers and in the process prevents the NLRB from fulfilling its statutory mandate to “protect the legitimate rights of both employees and employers in their relations affecting commerce.”

H.R. 1120, by the author’s own admission, is designed to support a recent Court of Appeals decision (Noel Canning) that calls into question the validity of President Obama’s recess appointments to the NLRB. The court would limit recess appointments to those made only in the recess between sessions of Congress and only for those vacancies that become open during the recess. Under the reasoning in Noel Canning, the President of the United States, for example, could not use the recess appointment clause to fill a vacancy during an August recess no matter when the vacancy occurred. This narrow reading of the recess appointment clause is contrary to the common and recent use of the provision by presidents of both parties and is inconsistent with a 11th Circuit case upholding the recess appointment of Judge William Pryor made by President George W. Bush. Other cases challenging the NLRB recess appointments are pending in other circuits and it is likely that these cases will produce results contrary to the decision in Noel Canning.

At best, it remains an open question whether Noel Canning’s unprecedented interpretation of the recess appointment clause will stand. Instead of waiting for the Supreme Court to settle the matter, H.R. 1120 steps in and prevents the Board from implementing or enforcing any decision, vote or other action that requires a quorum. Even if all three current NLRB members participate or even agree on a course of action, H.R. 1120 would prevent the Board from acting. While one can disagree with a specific rule or action of the NLRB, prohibiting the agency from conducting business at all, based on an action that has nothing to do with a Board decision, exposes the true motive behind this legislation.

While the NLRB enforces the rights of workers to form unions and bargain collectively, it also protects businesses and the public by providing for the orderly resolution of labor-management disputes and protects the free flow of commerce. H.R. 1120 would remove these protections and even reaches back to retroactively apply the prohibition against Board action to January 4, 2012. H.R. 1120 deprives both labor and business of remedies under the law, undermines the basic rights of workers and creates a level of uncertainty and confusion in labor relations that is unacceptable.

I urge you to vote against H.R. 1120 when it is brought to the House floor.

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