Employment Law Blog: The Continuing Saga of the NLRB Recess Appointments and Fallout

by Davis Brown Law Firm
Contact

On January 25, 2013, the United States Court of Appeals for the D.C. Circuit published an opinion in Noel Canning v. National Relations Board, Case No. 12-1115. The case arose out of a dispute between employer Noel Canning, a soft drink bottler, and International Brotherhood of Teamsters Local 760, (the Union) the union representing employees, concerning whether there was an agreement on the terms of a collective bargaining agreement, or labor contract, and whether Noel Canning committed an unfair labor practice under the National Labor Relations Act in refusing to execute the collective bargaining agreement.

The case was initially the subject of an unfair labor practice proceeding filed by the Union before the NLRB. A hearing was held, after which the NLRB Administrative Law Judge ruled in favor of the Union, finding a violation of §8(a)(1) and (5) of the National Labor Relations Act. Noel Canning filed exceptions to the ALJ’s decision with the NLRB, which affirmed the ALJ’s decision. Noel Canning filed a timely action for review of the NLRB’s decision, and the NLRB petitioned for enforcement of its decision and order.

The D.C. Circuit Court of Appeals first disposed of the factual and non-constitutional issues, however, found that there were “extraordinary circumstances” under §10(e) of the NLRA, justifying consideration of the jurisdictional issue of whether the Court could entertain consideration of the underlying constitutional issues, which had not been raised before the NLRB. With this finding, the Court proceeded to analyze the issue of the authority of the NLRB to act, and to issue orders, without a quorum. The issue of the quorum arose from the status of three of the five NLRB members as recess appointees by the President, not having been confirmed by the Senate. With only two confirmed members, the NLRB would have no quorum to act.

After engaging in an extensive analysis of the definition of “the Recess”, including a review of the Federalist Papers No. 67, the language of the U.S. Constitution, similar language in the North Carolina Constitution which existed at the time of the implementation of the U.S. Constitution, and the historical infrequency of recess appointments, none having occurred in the first 80 years after the adoption of the Constitution and only 3 prior to 1947, the Court concluded that “the Recess” referred to in the Recess Appointment Clause did not support the propriety of intrasession recess or adjournment appointments. To the contrary, the requirement that appointments occur with the advise and consent of the Senate was viewed as of paramount importance, to avoid defeating the careful separation of powers structure in the Appointments Clause of the Constitution. “Adjournment”, under the Adjournments Clause, was viewed as referring to legislative breaks, not “a recess”, and distinctly different than “the Recess”, with intention, by constitutional drafters and the Court. Recess appointments were found to be appropriate only when the Senate was in “the Recess” between congressional sessions, which would last for months at the time the drafters of the Constitution wrote, and not for breaks within a session.

The Court went on to interpret whether the vacancies happened during “the Recess”, an additional requirement for valid recess appointments. The Court found that the vacancies did not “happen” during an intersession recess, but happened before that time, and that a President could not simply wait for a recess to fill pre-existing vacancies. The Court likened “happen” to “arise” rather than “exist”.

The Court determined that the appointment of three members of the NLRB on January 4, 2012, were not made in an intersession recess of Congress, but after a new session of Congress had commenced on January 3, 2012. As such, they were invalid from their inception, and the NLRB lacked a quorum to conduct business when the decision in the underlying case was made on February 8, 2012. The NLRB decision on that date was vacated.

What does this mean for pending cases, orders and rules? There are current NLRB cases and pending appellate cases around the country concerning orders issued by the NLRB on and after January 4, 2012. After the Noel Canning case, enforceability is clearly in doubt.

One California-based hospital company Prime Healthcare Services, which owns 21 hospitals in four states, made public that it had informed one of its employee unions, SEIU-United Healthcare Workers West, that it would not follow an NLRB ruling mandating the collection of union dues after expiration of a collective bargaining agreement, or a ruling compelling employers to provide unions with certain materials during internal investigations, stating that it would violate the law to do so. (Reuters, Feb. 1, 2013).

On March 1, 2013, in an action entitled Laboratory Corporation of America Holdings v. NLRB, (Case 1:13-cv-00276-RBW, U.S. Dist. Ct. for the Dist. of Columbia), an employer filed a complaint for injunctive and other relief against the NLRB to prevent the NLRB from ordering an election or certifying the results of an election. The issue arose when the National Union of Hospital and Health Care Employees, AFSCME, AFL-CIO, filed a representation petition with the NLRB on January 23, 2013.

In oral argument before the Third Circuit Court of Appeals on March 19, 2013, attorneys in NLRB v. New Vista Nursing (Nos. 11-3440, 12-1027, 12-1936) were asked whether the Court could duck the recess appointments issue. New Vista involves an employer’s action to prohibit enforcement of an NLRB order. Following the Noel Canning decision, on February 28, 2013, the U.S. Department of Justice filed a letter brief with the Third Circuit, addressing the decision in Noel Canning, and asserting that New Vista had forfeited its challenges based on that decision, having failed to raise the recess appointment issue, and asserting that the Noel Canning decision was without merit. In the Fourth Circuit, Nestle Dreyer’s Ice Cream Company v. NLRB is being scheduled for oral argument, and will address similar issues concerning the enforceability of NLRB orders.

It appears likely that other employees and unions subject to unfavorable NLRB decisions will raise challenges to orders, appeal orders and decisions, and move to stay pending appeals and enforcement actions until a final resolution of the issue of the authority of the NLRB.

The NLRB rulemaking process, resulting in the confirmation of final rules during a period without a quorum of NLRB members, will also likely be held in abeyance, pending determination of the recess appointment issue by the United States Supreme Court. Consequently, the enforcement of contested posting regulations, the subject of a pending appeal, will not occur in the near future.

How has the NLRB responded?

On March 12, 2013, the NLRB determined that it would not seek an en banc rehearing before the U.S. Court of Appeals for the D.C. Circuit. The NLRB, in consultation of the Department of Justice, indicated that it intended to file a petition for writ of certiorari with the United States Supreme Court for review of the decision. The petition is due on April 25, 2013. If there are decisions resulting in a split of circuit opinions, it is more likely that the United States Supreme Court will review the case. As noted above, the NLRB filed a letter brief in NLRB v. New Vista Nursing, and it is likely that such briefs will be filed in pending and new actions concerning NLRB orders and rules for the operative “non-quorum” time period.

However, until that time, the NLRB has been determined to have no ability to act and issue orders without at least a quorum of three validly appointed members. Pending cases may not be resolved, and orders of the Board since January 4, 2012, may be subject to challenge.

How has the Executive Branch responded?

On February 13, 2013, President Obama formally nominated Sharon Block and Richard Griffin, the two recess appointees, to the NLRB, and requested Senate confirmation of each. No vote has been taken as of the publication of this article.

In conclusion, watch for appellate decisions and the Senate confirmation process in the near future, and for action by the United States Supreme Court in the next term. If the Senate does confirm enough nominees for a quorum, watch to determine whether the NLRB acts to confirm prior orders on rules, including postings, and on prior and pending cases.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Davis Brown Law Firm | Attorney Advertising

Written by:

Davis Brown Law Firm
Contact
more
less

Davis Brown Law Firm on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.