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Much to sort out in the wake of Noel Canning

July 1st, 2014  |  Pamela Wolf

Yesterday’s Supreme Court ruling that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional has understandably created more than just a little buzz in the labor law community — there is a lot to sort out in its wake. The Court found that because the Board appointments were invalid, the Board itself lacked a quorum and so could not lawfully act — calling into question the many decisions made during the non-quorum period. A fresh look at the Senate rules that some say gave rise to the need for recess appointments may also be in order.

Not all clarity was lost, though, because the High Court also held that the Recess Appointments Clause empowers the president to fill any existing vacancy during any recess — intra-session or inter¬session — of “sufficient length.” However, in this case, three days was too short a time to trigger a recess within the scope of the Clause.

Non-quorum decisions. Presumably understanding the enormity of the problem that the ruling has caused for the NLRB, Chairman Mark Gaston Pearce quickly issued a statement: “We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. … The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.” Pearce also pointed out the NLRB currently has a full contingent of five Senate-confirmed members, who he said are prepared to fulfill the Board’s responsibility to enforce the NLRA.

U.S. Chamber of Commerce President and CEO Thomas J. Donohue called the ruling “a victory for the rule of law.” He also underscored the problem that the executive action had created for employers: “The President’s unprecedented recess appointments left the NLRB in a legal limbo, causing major uncertainty for both employers and employees alike.”

What is the scope of the problem? Referring to the scope of the problem now facing the Board, Donohue said, “hundreds of decisions after those appointments were made in January 2012, including over 300 after the D.C. Circuit’s decision in Noel Canning v. NLRB.” In January 2013, the appeals court invalidated an NLRB decision against Noel Canning on the grounds that the Board lacked a quorum because three “recess” appointments to it were unconstitutional.

Data provided by then-NLRB GC Richard F. Griffin, Jr. in a March, 26, 2014, Memorandum indicated there were more than 142 cases that raised issues affected by the controversial Noel Canning case. Griffin noted there were then about 107 pending cases in the courts of appeals in which a party or the court has raised a question regarding the validity of the recess appointments of Members Griffin, Block, or Flynn. Another 35 cases, according to the Memorandum, have raised the question of the validity of Member Becker’s appointment. The GC also pointed to a Southern District of Ohio case that had been stayed since July 2013 awaiting the Noel Canning ruling — it was filed by National Right to Work on behalf of an individual seeking declaratory and injunctive relief that a Board order dismissing his certification petition was ultra vires.

The Memorandum also noted that the NLRB’s Section 10(j) litigation program continued to be affected by the issues raised in Noel Canning. While the validity of the president’s appointment of three members to the Board on January 4, 2013, was challenged in some district courts in response to Sec. 10(j) petitions, the primary challenges were to the Board’s 2011 delegation of authority to the GC to initiate 10(j) proceedings, either at its inception or that it lapsed when the Board fell below a quorum.

Respondents have also challenged the 2001 and 2002 Board delegations, Griffin said, as well as continued challenges to the validity of the 2011 delegation. This defense was raised in response to Sec. 10(j) petitions in FY 2013. According to the Memorandum, every court that addressed the issue upheld the validity of the Board’s delegations of the GC’s authority to initiate 10(j) proceedings, avoiding the constitutional issue of the validity of the recess appointments.

The GC also said that for the first time, respondents also mounted challenges in 2014 to Regional Directors that had been appointed by the recess Board and to the President’s designation of Acting General Counsel Lafe Solomon. He noted that a district court in the Western District of Washington dismissed a 10(j) petition on the basis that Solomon’s designation was invalid under the Federal Vacancies Reform Act (FVRA). The appeal of that case was still pending in the Ninth Circuit at the time the Memorandum was issued. In contrast, a court in the District of Alaska denied a motion to dismiss and granted injunctive relief after considering the FVRA and finding the employer brought an impermissible collateral attack or a direct attack that failed pursuant to the de facto officer doctrine. Similar challenges were litigated in three other cases, with one still pending in district court at the time the data was provided. Two of the challenges were rejected, with one under appeal in the Second Circuit, Griffin said.

Reactions on Capitol Hill. On the Hill, Sen. Lamar Alexander (R-Tenn.) called the High Court ruling a “a powerful rebuke to the Obama administration.” He said the decision serves as a reminder that the Constitution confers on the Senate powers that the executive branch cannot usurp. “Our founders wanted a President, not a king, and our Constitution is written to protect against precisely the kind of overreach this president demonstrated with his so-called recess appointments to the National Labor Relations Board.”

Alexander traced the actions he and his colleagues took in an effort to undo the president’s recess appointments to the Board:

  • In September of 2012, Alexander and 41 Republican senators filed an amicus brief in the Noel Canning (the D.C. Circuit challenge). 
  • In February 2013, Alexander called on the president’s appointees, Sharon Block and Richard Griffin, to “leave the board,” after the D.C.  Circuit in January ruled their “recess” appointments to the NLRB were unconstitutional.
  • In March 2013, with 17 cosponsors, he introduced a budget amendment to defund decisions and regulations made by what he called “the unconstitutional NLRB ‘quorum.’”
  • In April 2013, Alexander introduced the “Preventing Greater Uncertainty in Labor-Management Relations Act,” to prohibit the NLRB from taking any action that requires a quorum until the Board members constituting the quorum have been confirmed by the Senate, the Supreme Court issues a decision on the constitutionality of the appointments to the board made in January 2012, or the first session of the 113th Congress is adjourned.

Senator Tom Harkin (D-IA), Chairman of the Senate Health, Education, Labor, and Pensions Committee, perhaps would consider these Republican-initiated efforts as aimed at rendering the NLRB impotent. In the wake of the Supreme Court ruling he issued a statement defending the president’s actions: “The American men and women who manufacture our goods, nurse us back to health, and build our roads are the backbone of the middle class and the driver of our economy. Our nation relies on them. The least we can do is ensure that their basic rights are protected and that they have a voice in the workplace. In that regard, and in the face of a Republican Party determined to reduce the NLRB to a toothless body, I believe President Obama did the right thing in using recess authority to appoint members to the National Labor Relations Board.”

Harkin also said that the most important thing going forward is to focus “on taking necessary steps to ensure that we have a strong NLRB able to adjudicate our nation’s labor laws and to ensure that our workers are able to participate in a democratic workplace.”

Time to change Senate procedures? The CWA pointed to a different aspect of the High Court ruling and the long road that put the recess appointment issue before the Justices. “Today’s Supreme decision is a sharp reminder that the U.S. Senate functions under archaic procedures that must change. That’s especially true of the rule requiring a super-majority, or 60 votes, for the Senate to recess.”

The Senate rules are contrary to those of other public bodies, according to the union: “In every other democratic meeting, from the local city council to any major parliamentary body, proceedings are recessed by a majority vote. Only the U.S. Senate requires a super-majority to proceed to debate on most motions, legislation, and including the motion to recess.”

The consequence of this rule, according to the CWA, has been a “key tactic used by the Senate minority to block confirmation of the president’s executive and judicial nominations.” The union said that Senate Minority Leader Mitch McConnell made it clear that his party’s goal was to make President Obama a one-term president. “When that didn’t succeed, the Senate minority stepped up a campaign of delay and obstruction of appointments and any progressive legislative advances,” the union observed. “The minority’s strategy of refusing to proceed to a vote for any recess has made a mockery of the Senate’s role in government.”

In the eyes of the CWA, “the Senate’s constitutional duty is to review the president’s nominees through ‘advice and consent’ — not use parliamentary tricks to impede his policy agenda.”