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When a Recess May Not Really Be a Recess: An Argument That Can Only Happen in Washington

Last updated on September 5th, 2012 at 04:09 pm

Peter Larkin Shelby Report Independent GrocersOn Dec. 23, 2011, President Obama and Congress finally departed Washington, D.C., for the holidays after a bruising battle over extending a payroll tax cut for employees. Although Congress was not in town, the House and Senate were technically not in recess but rather remained in a “pro-forma” session to ­prevent President Obama from making recess appointments. But the president had other ideas.

Washington tends to throw a lot of “terms” around, so first, let’s address what a pro forma session is. In a pro forma session, Congress—usually led by a Congressman and Senator (respectively) located close to Washington, D.C.—gavels into session, recites the Pledge of Allegiance, recites the Morning Prayer, does not conduct any legislative business and gavels out. The whole process takes only a few minutes, but has been considered a session of Congress. Such brief pro forma sessions are held every three days when both the House and Senate cannot agree to both be in recess for longer periods of time.

On Jan. 4, 2012, President Obama infuriated Republicans when he ignored Congress’ pro forma sessions by appointing Richard Cordray as director of the Consumer Financial Protection Bureau (CFPB). Republicans in Congress are opposed to the CFPB over what they see as expanded powers with a lack of oversight. Adding to the GOP anger is the fact that Cordray’s nomination was initially rejected in a Senate cloture vote before being recess-­appointed by the president.

In addition to Cordray, on Jan. 4 the president appointed Sharon Block, Richard Griffin and Terence Flynn to three open positions on the National Labor Relations Board (NLRB). They were sworn in to their positions on Jan. 9, 2012. The NLRB was left with just two members, as member Becker’s recess ­appointment had since expired, effectively “shutting down” the board due to a lack of a quorum. Now with the NLRB potentially back at full authority of five members, the ­employer community is bracing for more ­controversial, pro-labor decisions. The Coalition for a Democratic Workplace (CDW), of which N.G.A. is a leading member, amended in January a previous suit challenging the board’s employer posting requirement to also ­include a challenge to these ­appointments.

Beginning in 2007, Congress (then controlled by the Democrats) and the Bush White House functioned under an agreement where Congress would take breaks of three to 10 days, and the president would not use his recess ­appointment authority to fill positions with controversial ­appointees. This agreement was maintained until President Obama made these appointments.

This leads to a legal “gray area” where hundreds of ­potential decisions and rulemaking may wind up being ­challenged in court based on the validity of the appointments, a process that could take years.

So, what does all this mean for grocers? Unfortunately, these recess appointments could lead to a new level of ­confusion, particularly regarding the NLRB. Are decisions handed down by the board or rulemaking by the CFPB valid? One example is the Roundy’s case before the NLRB. That decision will determine if unions would have the right to hand out literature on your property.

N.G.A. intends to continue supporting challenges to these recess appointments. The implications of these appointments, particularly regarding the NLRB, are significant and cannot be ignored. Unfortunately, given the legislative ­calendar for 2012 and the national elections, nothing can be ruled out. The only thing certain this year is uncertainty.

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