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The National Grocers Association (NGA), the National Retail Federation (NRF) and the Retail Industry Leaders Association (RILA) have expressed their approval of the U.S. Court of Appeals’ unanimous decision, in Noel Canning v. National Labor Relations Board (NLRB), that the board’s 2012 recess appointments were "constitutionally invalid and board therefore lacked quorum."
The Canning case challenged the appointments as being unconstituional, and on those grounds, the court found that the NLRB had lacked a quorum of three legal members to act since January 2012.
In its decision, the court noted: "The board conceded at oral argument that the appointments at issue were not made during the intercession recess. The president made his three appointments to the board on Jan. 4, 2012, after Congress began a new session on Jan. 3, and while that new session continued. Considering the text, history and structure of the Consitution, these appointments were invalid from their inception."
"NGA believes that the consitutional separation of powers is important, and the unconstituional appointments in this case illustrate those limits were surpassed," said Peter Larkin, president and CEO of the Arlington, Va.-based trade organization. "Looking forward, we will continue to support efforts to curtail excessive and burdensome regulations and to ensure a level playing field for employees and employers."
Hailing the decision as “a victory for every American employer and employee,” David French, SVP of government relations at Washington, D.C.-based NRF, said that by vacating the earlier decision in the Canning case, the appeals court had “called into question all recent NLRB actions and activities.”
According to French, the decision “found grievous fault with President Obama’s use of recess appointments to constitute the NLRB, and has effectively derailed the administration’s attempt to implement the so-called Employee Free Choice Act through executive power,” and noted that the court “rightly recognized the Senate’s important role in providing advice and consent on executive appointments.
He added that “this decision has provided the administration yet another opportunity to work with Congress and the business community to rehabilitate the battered NLRB.”
At Arlington, Va.-based RILA, SVP for Government Affairs Bill Hughes, was equally forceful in his response. “The decision should … send a strong message that precedent and the rule of law matter,” he said. “The NLRB’s activist agenda has gone unchecked, resulting in numerous actions that have overturned decades of precedent to establish micro-unions and deny employers due process rights. These decisions and countless others hurt businesses and undermine needed job creation.”