Circuit Court Holds NLRB Recess Appointments Unconstitutional

by Pierce Atwood LLP
Contact

Last week we promised Part 2 of our Alert series concerning the NLRB’s recent activity.  We will deliver on that promise (stay tuned) but first we must address Friday’s decision by the D.C. Circuit Court of Appeals holding that President Obama’s appointments in January 2012 of three Board members were unconstitutional.

This case reached the D.C. Circuit when an employer, Noel Canning, appealed an order of the Board finding that it had committed an unfair labor practice by refusing to execute in writing a collective bargaining agreement it had allegedly agreed to orally.  As is normally the case, the employer and union presented conflicting facts concerning whether there had ever been an oral agreement.  Ordinarily, a court of appeals reviewing a Board unfair labor practice finding such as this one would review whether the Board’s finding was based on “substantial evidence.”  In this case, however, the D.C. Circuit held that the Board decision was invalid regardless of the evidence because at the time of the decision the Board lacked a quorum to act because three of its five members had been unconstitutionally appointed to the Board as “recess appointments.”

Board members are nominated by the President and must be approved by the Senate.  There is a Recess Appointments Clause in the Constitution giving the President the authority to “fill up all Vacancies that may happen during the Recess of the Senate” without obtaining Senate approval.  At the time the Constitution was drafted, the Senate did not operate as the year-round body it is today.  Rather, the Senate regularly held recesses lasting for months on end and, of course, Senators could not fly or drive back to Washington on a moment’s notice to approve presidential appointments.  Thus, there was a very practical reason for providing for recess appointments.

As anyone who pays attention to the confirmation process today knows, recess appointments are no longer simply used when Senators are unavailable but have become political tools used by modern presidents when confirmation of appointees is unlikely.  The Senate, in turn, employs its own rules and tactics to delay, avoid, or block presidential nominations.  In other words, the modern appointment process is a power struggle between the executive and legislative branches of government as well as the two political parties.

The three members whose appointments were challenged by Noel Canning were all appointed by President Obama in January 2012 while the Senate was operating pursuant to a unanimous consent agreement which provided that, rather than adjourn into an official “recess,” it would meet in pro forma sessions every three business days but would not conduct business during those sessions.  The three member panel of the D.C. Circuit unanimously interpreted “recess” to mean intersession recess, or the period between sessions of the Senate.  The Court rejected the Board’s position that intrasession recesses, or breaks in the Senate’s business when it is otherwise in session, fit within the meaning of “recess” in part reasoning that the Board’s position could result in the situation when the President could make “recess appointments” during the Senate’s lunch break.  Because the Senate continued to hold its pro forma sessions in January 2012, the Court held it was not in an intersession recess and the appointments were invalid.  The Court acknowledged that over the past several decades, presidents have made liberal use of intrasession recess appointments, but noted that the fact that they have become somewhat common does not make them constitutional.  Two members of the Court further found the appointments unconstitutional because the vacancies the three members had been appointed to fill did not “happen” during a recess because the vacancies had initially “arisen” while the Senate had been in session.  (The other member of the panel declined to reach the issue).

As you know, this particular Board has been an active one.  The D.C. Circuit decision puts in question the enforceability of the Board’s hundreds of decisions made in the past year, several of which are currently being challenged on recess appointments grounds.  However, the decision is confined to vacating the unfair labor practice finding against Noel Canning, and the NLRB has issued a statement that it intends to continue deciding and processing cases until the issue is finally resolved.  We note that the D.C. Circuit decision is at odds with several other Circuit Court decisions interpreting “recess” to include intrasession breaks and interpreting “happen” to include vacancies that “exist” during a recess regardless of when the vacancy first arose.  The uncertainty surrounding the enforceability of this Board’s decisions will likely need to be resolved by the Supreme Court and no one knows whether the D.C. Circuit decision will become the law of the land.  Until that occurs, all decisions by the current Board are subject to challenge.

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.

© Pierce Atwood LLP | Attorney Advertising

Written by:

Pierce Atwood LLP
Contact
more
less

Pierce Atwood LLP 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.
Custom Email Digest
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.