Recess Appointments

The Senate took a step closer to confirming five nominees to the NLRB this week when the Health, Education, Labor, and Pensions Committee (HELP) Committee voted to recommend that the full Senate confirm the nominations of Democrats (and current Board members) Mark Gaston Pearce, Richard F. Griffin, and Sharon Block and Republicans Harry I. Johnson and Philip A. Miscimarra. Two of the nominees, Richard Griffin and Sharon Block, were opposed by Republican members of the Committee because their current recess appointments to the NLRB have been invalidated by the D.C. Circuit’s Noel Canning decision.

The Obama Administration has pushed to get the bipartisan slate of nominees confirmed in an attempt to end the continuing effect of Noel Canning (which was bolstered by the recent New Vista Nursing decision) which continues to put in jeopardy all decisions made by the Board with the participation of the disputed recess appointees. It is unclear when the Senate would vote on the current nominees.

Our full coverage of the recess appointments issue is available here.

A Barnes and Thornburg legal alert analyzing yesterday's New Vista Nursing Third Circuit case regarding recess appointments is now available on the firm's website. Our previous coverage of the case from yesterday can be found here.

One issue analyzed is the Third Circuit's distinction between the NLRB quorum requirement and the Board's ability to delegate authority to three members.The Third Circuit found that even if the Board as a whole has a valid quorum, if any member of a three-person Board panel that decides a case is not validly appointed, that is enough to invalidate the decision. This distinction is broader than the D.C. Circuit's in Noel Canning and potentially puts many more Board decisions in jeopardy. Read our full analysis in our alert available here.

Our complete coverage of the recess appointments issue is available here.

In another groundbreaking decision against the NLRB, the Third Circuit has followed the D.C. Circuit's reasoning in Noel Canning regarding presidential recess appointments and as a consequence, has found former Board member Craig Becker's recess appointment in March 2010 invalid.

In an opinion issued today in NLRB v. New Vista Nursing, the Third Circuit held that presidential recess appointments are only valid if they occur during the intersession break of the Senate, not during any break of significant time during a Senate session (as has been the commonly held interpretation of presidential administrations for the last several decades). The Court therefore found that NLRB member Becker's appointment in March 2010 was invalid because it did not occur during a recess of the Senate. Accordingly, any decisions made by a three-member Board with Member Becker participating (which as we previously noted go back to August 2011) are also invalid under the U.S. Supreme Court's decision in New Process Steel. 

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Yesterday in its NAM v. NLRB decision which struck down the NLRB posting rule, the D.C. Circuit observed a further possible extension of its earlier Noel Canning decision, noting that under the reasoning of Noel Canning, Member Craig Becker’s recess appointment to the NLRB would also be considered invalid.  In the course of its opinion, the D.C. Circuit stated “To the extent that Noel Canning applies—we assume, without deciding, that it does—Becker’s appointment was constitutionally invalid.”

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On April 30, 2013, the NLRB for the first time in a decision addressed the D.C. Circuit’s controversial Noel Canning decision and held that it does not prevent the agency from continuing to act while the case is litigated.

In Bloomingdale’s Inc., 359 NLRB No. 113 (April 30, 2013), the employer filed a Motion to Dismiss arguing that based on the Noel Canning decision that President Obama’s recess appointments to the NLRB were invalid, all actions of the agency, including the issuance of unfair labor practice complaints, were invalid for a lack of quorum.

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The Solicitor General of the United States, Donald B. Verrilli, has filed a Writ of Certiorari on behalf of the National Labor Relations Board (the NLRB), asking the Supreme Court to review the decision by the D.C. Circuit, which we discussed here. In the Writ of Certiorari, Verrilli asks the Court to overturn the D.C. Circuits decision, which found President Obama’s recess appointment to the NLRB unconstitutional, on the grounds that…

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The Preventing Greater Uncertainty in Labor-Management Relations Act progressed towards a vote on the House floor. Overcoming criticism by Democrats, the Bill won a 7-3 vote in the House Rules Committee. As previously discussed by us here, the Bill, amongst other things, would seek to ban the NLRB from taking action which requires quorom until the Noel Canning controversy is resolved via: (1) Senate confirmation of the appointees; (2) Supreme Court decision; or (3) the 113th Congress adjourns and terms of the recess appointees expire.

This controversial Bill seems to be coming to a head just as President Obama is seeking to fill the Board with his new presumed nominees which we covered earlier this week. It is believed that a vote on the Bill on the House floor could happen yet this week.

The Preventing Greater Uncertainty in Labor-Management Relations Act, H.R. 1120 was introduced to the House of Representatives on Wed., March 13, 2013 in response to the flux caused by the NLRB recess appointments and the D.C. Circuit's decision in Noel Canning (previously covered here). Citing policy reasons, the bill seeks to ban the NLRB from taking action which requires quorom until the controversy is resolved via: (1) Senate confirmation of the appointees; (2) Supreme Court decision; or (3) the 113th Congress adjourns and terms of the recess appointees expire. While the bill seeks to stop the NLRB from taking action that requires quorum, it does not intend to stop NLRB regional offices from processing ULP charges. 

A copy of H.R. 1120 can be found here (PDF).

The National Labor Relations Board has announced that it will forgo an en banc rehearing of the D.C. Circuit Court of Appeals' decision in Noel Canning v. NLRB which held that President Obama's recess appointments of Terence Flynn, Richard Griffin and Sharon Block were unconstitutional.  Instead, the NLRB will file a petition for certiorari with the U.S. Supreme Court which is due on April 25, 2013.  Obviously there will be more to come on this story.

For our previous coverage of this story, see the follow BT Labor Relations articles:

BT Labor Relations – “D.C. Circuit Holds NLB Recess Appointments Invalid.”
BT Labor Relations – “Senator Introduces Bill to Overturn NLRB Decisions.”
BT Labor Relations – “If At First You Don’t Succeed: Obama Renominates NLRB Appointments.”

The AFL-CIO Executive Council, which covers nearly 60 affiliated unions, issued a policy statement Feb. 26, 2013 demanding President Obama and the Senate act immediately to bring the NLRB to full strength. 

As we have reported here, in its recent Noel Canning decision, the D.C. Circuit invalidated the President's January 2012 recess appointments to the NLRB. The Council called the decision "radical," “unprecedented” and “sweeping in its potential reach.” The policy statement also says, “This is an intolerable and unacceptable situation. Working people deserve a functioning NLRB that will enforce workers’ rights” and that the “labor movement must mobilize itself and its allies to demand action by the Senate and win confirmation of a package of nominees to the NLRB. We will hold senators of both parties accountable if they stand in the way or fail to act.” The policy statement can be found here. 

The New York Times politics and government blog The Caucus reports that Larry Cohen, president of the Communications Workers of America and chairman of the AFL-CIO’s organizing committee said in a news briefing that the union expects Senate Democrats to "use all the options" to get nominees approved. Cohen warned that if Senate Republicans filibustered to block the nominations and Senate Democrats did not then adopt tougher rules to overcome filibusters, “we will mobilize and take action against the Senate Democrats like we never have before.” The Caucus blog entry can be found here.