Board Argues SCOTUS Should Reverse Noel Canning RulingAbigail Rubenstein of Law360 ($$) writes that this past Friday, the National Labor Relations Board (NLRB or the Board) submitted its Brief to the Supreme Court of the United States, arguing that the D.C. Circuit’s January 2013 Noel Canning decision was in error.  In pertinent part, the Board’s Brief argues that the D.C. Circuit’s ruling that the Constitution only authorizes recess appointments during intersession recesses was incorrect.  The Brief also attacked the use of "pro forma" sessions, arguing that they should not render the Senate in session. 

“The deployment of pro forma sessions in an effort to avoid application of the Recess Appointments Clause would disrupt the balance that Article II strikes between the president and the Senate,” the brief said. “When the Senate is absent in fact but present only by virtue of a legal fiction, the president may use the auxiliary method of appointment that the Constitution expressly provides for circumstances when the Senate is unavailable to provide its advice and consent and there are vacancies that the public interest requires to be filled, even if only on a temporary basis.”

This matter is certainly significant as to the validity of Board decisions made by recess-appointed members.  However, the High Court’s ruling could have broader repercussions as well, as a sweeping ruling could set new limits on executive power.  We will be watching this case very closely and will keep you in the know.

Gov. Brown Pushing Parties in BART Dispute to Make DealCBS San Francisco reports that California Governor Jerry Brown is hoping desperately that the Bay Area Rapid Transit (BART) labor dispute reaches a conclusion before the end of his mandated 60-day "cooling off" period.  The parties to the dispute are finally back at the negotiating table, but are still divided over pay, benefits, and "workplace safety issues."  BART management has offered workers a 10% pay hike over the course of four years, while the union is pushing for 21.5% over three years.  We will keep you posted as negotiations move forward.

Adjunct Profs Suspend StrikeCBS New York reports that adjunct professors at Nassau Community College in New York state have suspended their strike and have returned to the classroom.  The strike is on hold at least through Wednesday, when the professors and school officials will meet with a mediator.  Interestingly, the professors are in a tenuous position as New York state law forbids striking by public workers.  Accordingly, if the professors do go back out on strike, they could be replaced. 

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