Retailers group: U.S. SC needs to rule against Obama recess appointments, stop NLRB's 'activist agenda'

By Jessica M. Karmasek | Jun 25, 2013

ARLINGTON, Va. (Legal Newsline) -- One of the world's largest retail associations says it is pleased the U.S. Supreme Court has decided to take up a case over President Barack Obama's recess appointments, and is urging the court to rule against the administration.

On Monday, the nation's high court, in a 14-page order list, granted the Obama administration's petition for a writ of certiorari, or review.

It now will decide -- sometime during its 2013-14 term -- if the President's recess appointments to the National Labor Relations Board are unconstitutional.

"RILA applauds the U.S. Supreme Court's decision to hear the case challenging the administration's unconstitutional appointments to the NLRB," said Bill Hughes, senior vice president of the Retail Industry Leaders Association.

"Given that the NLRB has continued to operate with business as usual despite lower court rulings against the recess appointments, it is vital that rule of law, as well as checks and balances, be restored."

RILA is the trade association of the world's largest retail companies.

Members include more than 200 retailers, product manufacturers and service suppliers, which together account for more than $1.5 trillion in annual sales, millions of American jobs and more than 100,000 stores, manufacturing facilities and distribution centers domestically and abroad.

The association argues that the court needs to prevent the NLRB from continuing its "activist agenda."

"Decisions like the micro-unions decision overturn more than 50 years of precedent and would create division in the workplace, increase operational complexities and costs, while also depriving employees of the flexibility and cross-training opportunities they seek," Hughes said.

"This is just one example of regulations and case decisions that have devastating effects on the retail industry."

He continued, "We are hopeful that (Monday's) decision to hear the case challenging the administration's controversial appointments will be the first step in restoring a common-sense balance between worker's rights and economic growth."

The U.S. Department of Justice, who is arguing on behalf of the administration, takes issue with the judgment of the U.S. Court of Appeals for the District of Columbia Circuit.

"Review by this court is warranted to resolve the circuit conflict created by the decision below, to remove the resulting constitutional cloud over the acts of past and present recess appointees, and to restore the President's capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent," Solicitor General Donald B. Verrilli Jr. wrote in an April petition filed on behalf of the NLRB.

In January, the D.C. Circuit granted the petition of Noel Canning against the NLRB on the basis that the board lacked a sufficient quorum of members when it reached a decision regarding Canning.

That was based on the fact that Obama appointed three of the NLRB's five members without Senate confirmation on Jan. 4, 2012, with recess appointments.

But Canning argued that the Senate was in pro forma session, making Obama's appointments invalid.

The case arose out of a dispute between Canning, a Washington state Pepsi-Cola bottler and distributor, and Teamsters Local 760. The dispute concerned the negotiation of a collective bargaining agreement.

After coming to an impasse, the NLRB made a ruling that Canning considered unfavorable to it. Canning filed an appeal to the D.C. Circuit on both statutory and constitutional grounds.

The three-judge panel of Chief Judge David B. Sentelle and Judges Karen LeCraft Henderson and Thomas B. Griffith was unanimous.

The panel said the appointments of Richard Griffin, Sharon Block and Terrence Flynn were "constitutionally invalid," thus deciding the NLRB did not have a "quorum for the conduct of business."

The DOJ argues that if the D.C. Circuit's decision stands, it could threaten a "significant disruption of the federal government's operations."

"The decision potentially calls into question every final decision of the board since Jan. 4, 2012," Verrilli wrote. "And, because many of the board's members have been recess-appointed during the past decade, it could also place earlier orders in jeopardy."

From Legal Newsline: Reach Jessica Karmasek by email at

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