As Battle Rages Over Recess Appointments, Board Confronts Choices

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A Jan. 25 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that two of the three current members of the National Labor Relations Board were given unconstitutional recess appointments has drawn praise from some NLRB critics and criticism from some of the board's supporters, but the decision leaves the board and the Obama administration with looming deadlines and decisions to make.

In a speech on the Senate floor Jan. 28, Sen. Lamar Alexander (R-Tenn.), now the ranking Republican on the Senate Health, Education, Labor, and Pensions Committee, called on Members Sharon Block (D) and Richard F. Griffin (D) to “pack their bags and go home.”

But Chairman Mark Gaston Pearce (D) said Jan. 25 that the board will continue to decide cases despite the ruling in Noel Canning Div. of Noel Corp. v. NLRB, D.C. Cir., No. 12-1115, 1/25/13 (64 BTM 33, 1/29/13). Pearce noted there are 12 cases pending in other federal circuits on the constitutionality of the Block and Griffin appointments.

The government's first decision may be whether to seek rehearing in the D.C. Circuit of the three-judge panel decision or to file an early petition for review by the U.S. Supreme Court. But the implications of the ruling may be felt even before that decision is made.

Court Found Appointments Invalid

Writing for the appeals court, Judge David B. Sentelle said the recess appointment power of the president described in the U.S. Constitution applies only during an “intersession” recess between the first and second sessions of the Senate, not during intrasession adjournments of the congressional body.

Block, Griffin, and Terence F. Flynn (R), who resigned last year, were appointed after the opening of the second session of the 112th Congress, and the court found the appointments were unconstitutional.

The court also observed that the Constitution's recess appointments provision only permits the president to fill a vacancy “that may happen during the Recess,” and found that the NLRB vacancies did not meet the test, which the court said referred to the onset or beginning of a vacancy, not merely its continuation.

Reaction Animated

Reaction to the decision on Jan. 25 was animated, and the ruling continues to be controversial.


Sen. Lamar Alexander (R-Tenn.), now the ranking Republican on the Senate Health, Education, Labor and Pensions Committee, called on Members Sharon Block (D) and Richard F. Griffin (D) to “pack their bags and go home.”  


In his remarks on the Senate floor, Alexander charged that Pearce effectively said the board should remain “open for business” despite the Noel Canning decision. Alexander, on the other hand, said “the board should take down its 'open for business' sign and replace it with one that says 'Help wanted: accepting nominations.' ”

Alexander said that if Block and Griffin step down, NLRB will be left without a board quorum, but he asserted that regional offices would be able to process unfair labor practice charges and complaints as well as representation cases while the Senate considered new nominations by President Obama.

The ranking Republican on the Senate HELP committee pledged “speedy consideration” of such nominations.

The Wall Street Journal also targeted Pearce's remarks about Noel Canning in a Jan. 29 editorial stating that “the NLRB declares that it will keep doing business as if nothing happened.”

Noting a call by Sen. Mike Johanns (R-Neb.) for Block and Griffin to resign, the editorial said: “If they don't, Congress should stop funding the NLRB as soon as the continuing spending resolution expires in March.”

But attorney and New Yorker staff writer Jeffrey Toobin the same day posted a comment on the magazine's blog calling the ruling against NLRB a “judicial atrocity” and arguing that if Senate Republicans now simply refuse to act on nominations to agencies such as NLRB, the president will be powerless to respond.

AFL-CIO Blast the Decision

AFL-CIO President Richard Trumka issued a statement calling the ruling “nothing less than shocking.”

Asserting President George W. Bush made 179 appointments and President Clinton made 139 appointments “to keep agencies functioning and make the government work,” Trumka said he expects the decision to be overruled.

“In the meantime,” Trumka said, “the appointees to the National Labor Relations Board remain in their jobs and the NLRB remains open for business.”

Immediate Consequences

Ronald Meisburg, a partner representing employers at Proskauer in Washington, D.C., and a former NLRB general counsel and board member, told BNA Jan. 25 that the dispute over the president's power to make recess appointments “will undoubtedly have to be finally resolved by the Supreme Court, because it recognizes a serious constitutional limitation on the power of the President to make recess appointments to any federal position.”

But for NLRB, Meisburg said, the consequences of the court decision are immediate and significant. The “validity of any decision issued by the NLRB in the last year is now called into question, as well as the Board's power to issue decisions going forward,” he said.

“The other activities of the NLRB, such as the prosecution of unfair labor practice cases and the processing of representation petitions by the Regional Offices, will continue, but the ability to obtain Board review is effectively eviscerated, at least for the time being.”

D.C. Circuit Holding Other Cases

The D.C. Circuit, perhaps anticipating the impact of Noel Canning, acted quickly in a number of other cases pending in the appellate court.

The National Labor Relations Act, 29 U.S.C. § 160(e), allows the board to petition for court enforcement of its orders in federal circuits where an unfair labor practice occurred or where a charged employer or union resides or transacts business.

But Section 10(f) of the act, 29 U.S.C. § 160(f), also allows a “person aggrieved” by a final NLRB order to petition for review in the D.C. Circuit. Parties desiring review of NLRB decisions will likely consider the D.C. Circuit an attractive venue because of the court's issuance of Noel Canning and the absence of decided cases in the other circuits.

The D.C. Circuit already had dozens of petitions for review of NLRB decisions pending before Noel Canning was announced, including a number that were decided by NLRB panels that depended on Block, Flynn, or Griffin to make up a quorum.

On Jan. 25, shortly after releasing Noel Canning, the appeals court issued orders “on the court's own motion” holding many of the pending NLRA cases “in abeyance pending further order of the court.”

The court's action includes petitions for review of a number of significant board decisions such as Banner Health System d/b/a Banner Estrella Medical Center, 358 N.L.R.B. No. 93, 193 LRRM 1161 (2012), American Baptist Homes of the West d/b/a Piedmont Gardens, 359 N.L.R.B. No. 46 (2012), and other cases decided in the past few months by board panels that included recess appointees.

The board held in Banner Estrella that a hospital illegally interfered with employees' NLRA rights by asking them not to talk to co-workers about internal complaints under investigation by management. In Piedmont Gardens, NLRB overruled a longstanding precedent that denied labor organization representatives access to witness statements obtained by unionized employers, finding the board should balance the interests of unions and employers in deciding such issues.

The court's one-sentence orders in pending cases gave no indication of how long the cases will be held or how they may be resolved.

Due for More Scrutiny

The validity of the Block, Flynn, and Griffin appointments has been raised in other circuits, and oral arguments are expected in March in the U.S. Court of Appeals for the Third Circuit in New Vista Nursing and Rehabilitation v. NLRB, No. 12-1936. In that case, the employer is also relying on the recess appointments to argue that NLRB orders should not be enforced.

But Marshall B. Babson, who represents management at Seyfarth Shaw in New York, told BNA Jan. 29 that the impact of the Noel Canning decision may be tested as early as Feb. 5 when the Fifth Circuit hears oral argument in D.R. Horton Inc. v. NLRB, 5th Cir., No. 12-60031, where a home builder is seeking review of NLRB's ruling (357 N.L.R.B. No. 184, 192 LRRM 1137 (2012); 63 BTM 17, 1/17/12) that the company interfered with employee rights in violation of Section 8(a)(1) of the NLRA by maintaining a mandatory arbitration agreement that waived the rights of employees to participate in class or collective actions.

Horton was decided Jan. 3, 2012, by a board that consisted of Pearce and Members Brian E. Hayes--a Senate-confirmed Republican--and Craig Becker--a Democrat who was recess-appointed to the board in March 2010--but Hayes was recused from participating in the decision.

Babson, a Democrat who served on the board from July 1985 to July 1988, pointed out that Becker received an intrasession recess appointment. Horton is disputing the end of Becker's appointment and his authority to decide cases on the date the Horton ruling was issued, but Babson said the Fifth Circuit will be asked to consider the fact that Becker held the kind of appointment that was found invalid in Noel Canning.

Of course, Babson added, the court in Noel Canning first addressed NLRB's unfair labor practice findings against the company before reaching the constitutional issue of the board member appointments. If the Fifth Circuit decides that NLRB's position on mandatory arbitration is incorrect, Babson noted, the court may never reach the question of the recess appointments.

Dates for NLRB Action

NLRB has an option of requesting rehearing in the D.C. Circuit either by the three-judge panel that issued the Jan. 25 decision or by the full court. A petition for rehearing would be due by March 11.

The board could also file a petition for Supreme Court review within 90 days of the D.C. Circuit's Jan. 25 ruling or 90 days of the appeals court's denying rehearing in the case.

Babson told BNA that in some cases there may be a tactical reason for requesting a circuit court rehearing even if the request is unsuccessful, but he said the ability of employers and unions to obtain review of NLRB decisions in the D.C. Circuit adds some urgency to the situation, as suggested by the appellate court's quick action to hold other cases in abeyance.

Babson said he believes there is a “very compelling argument” for NLRB to take the recess appointment issue to the Supreme Court for clarification of “these important issues.”

Bill Would Halt NLRB Action

Finally, in response to the D.C. Circuit decision, Alexander and two other Republican senators Jan. 31 introduced legislation (S. 190) that would bar NLRB from using government funds to perform functions that require a quorum of board members, including issuing decisions.

A group of 40 Republican senators also sent a letter Jan. 31 to the two board members who took their seats under recess appointments, Block and Griffin, asking them to “immediately” leave the board, “withdraw from all Board activities and stop drawing salaries and other benefits associated with the positions you purport to hold, as your purported appointments have been found constitutionally invalid.”

By Lawrence E. Dubé  


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