Nlra Case Notes

• Publication year: 2014
• Author: By Richa Amar and Jonathan Cohen

NLRA Case Notes

By Richa Amar and Jonathan Cohen

Richa Amar is General Counsel of the United Nurses Associations of California/Union of Health Care Professionals, a labor union representing more than 23,000 health care professionals throughout Southern California. Jonathan Cohen, a partner at Rothner, Segall & Greenstone, represents unions and employees in all aspects of labor law, including in arbitration, litigation, and administrative proceedings before the Public Employment Relations Board and National Labor Relations Board.

Supreme Court Holds Recess Appointments to the Board Invalid and Resolves Controversy Over Appointments Clause

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)

In a unanimous decision, masking real tension on the Court over the scope of the U.S. Constitution's Recess Appointments Clause, the Supreme Court ruled that President Obama's recess appointment of Members Sharon Block, Richard Griffin, and Terence Flynn to the NLRB in January 2012—in between pro forma sessions of the Senate—was unconstitutional. The practical effect of the ruling is that hundreds of decisions issued by the Board between January 4, 2012, and August 2, 2013—when the current five-member Board was approved by the Senate—will need to be re-issued. (At the time of submission, the NLRB was still analyzing the impact of the decision.)

The genesis of the case was a February 2012 decision by a three-member panel of the Board (including Block and Flynn) finding that Noel Canning, a bottler and distributor of Pepsi-Cola products, violated the Act when it refused to reduce to writing and execute a collective bargaining agreement with Teamsters Local 760. In an ultimately successful petition to the D.C. Circuit Court of Appeals, Noel Canning argued that the NLRB did not have a valid quorum of three members when it issued its order because the appointments of Block, Griffin, and Flynn were beyond the President's powers under the Recess Appointments Clause. That Clause provides that "[t]he President shall have Power to fill up Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."¹

Although the entire Court agreed with the D.C. Circuit that the appointments were invalid because the Senate was not in recess during the pro forma sessions at issue, the justices sharply disagreed about two other questions concerning the Recess Clause: whether a "Recess of the Senate" applies to intra-session (those occurring in the middle of a session) as well as inter-session recesses (those occurring between sessions), and whether the words "vacancies that may happen" applies to vacancies that first come into existence during a particular recess, or whether it also includes continuing vacancies from before the recess.

In answering these questions, the majority, in an opinion authored by Justice Breyer and joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan, made clear that it put significant weight on the historical practice, as well as the purpose of the Clause to allow the President to ensure the continued functioning of the federal government when the Senate is away. The majority first analyzed whether "the recess of the Senate" includes intra-session recesses—concluding, contrary to the D.C. Circuit, that it does. The majority reasoned that although the words "the recess" might naturally seem to apply to the particular break in between sessions, the term could encompass either type of recess. The majority then turned to historical practice, finding that in the post-Civil War era, "Presidents have made thousands of intra-session recess appointments,"² and the "opinions of Presidential legal advisers," including numerous attorneys general, "are nearly unanimous in determining that the Clause" authorizes intra-session appointments.³ Despite some contrary views at times by members of the Senate, the majority concluded that the body as a whole has favored a functional definition encompassing intra-session recesses. Responding to the objection that their interpretation lacks a "textual floor" underneath the term "recess," the majority concluded that an intra-session recess "of more than 3 days but less than 10 days is presumptively too short to fall within the Clause,"⁴ leaving some room for appointments in the case of a national catastrophe that renders the Senate unavailable.

The next question addressed by the Court was whether the Clause was limited to filling vacancies that initially "happen" during that recess, or whether it also applies to "vacancies that initially occur before a recess and continue to exist during the recess." Although admitting that the word "happens" could be interpreted to apply only to vacancies that occur during the recess in which an appointment is made, the majority found that the word could, and historically has been, viewed more broadly. In an extensive historical review, the majority noted that presidents since at least James Madison have made recess appointments to pre-recess vacancies. Based on this history, and the purpose of the Clause being to allow the President to obtain the assistance of subordinate officers when the Senate cannot confirm them, the majority concluded (again contrary to the D.C. Circuit) that the President may make recess appointments to vacancies that arise before the recess in question.⁵

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On the third and final question—the legitimacy of appointments during the pro forma sessions in which the Senate did not transact business—the majority agreed with the D.C. Circuit, concluding that "the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business."⁶ Setting aside what it called "a more realistic appraisal of what the Senate actually did"⁷ during that time, and in view of its deference to the legislative branches, the majority concluded that the Senate retained the capacity to transact business throughout the period of pro forma sessions, so that it was not in recess at the time.

Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, concurred "in the judgment only," registering sharp objection to what he called the majority's "adverse-possession" view of Executive Power in the face of "clear text and an at-best-ambiguous historical practice."⁸ In the minority's view, the President may only make recess appointments during an inter-session recess, and only in the same recess as when the vacancy to be filled arises.

In this fashion, a divided Court has resolved a fundamental Constitutional issue that surely will have repercussions in future appointment controversies. The effect of Noel Canning will also be felt for several years by labor practitioners, as the Board devotes resources to reissuing—and potentially re-deciding on new grounds—scores of invalidated decisions.

Seventh Circuit Orders Employer's Owners to Be Held in Federal Custody Unless They Pay Board-Ordered Backpay Award to Employees

NLRB v. HH3 Trucking, Inc., 755 F.3d 468 (7th Cir. 2014)

Rejecting arguments by owners of the employer that they could not be required to pay a $190,000 backpay award to four employees, the Seventh Circuit Court of Appeals ordered that failure to pay would result in an order returning them to federal custody.

In 2005 and 2006, the court enforced Board decisions ordering the employer to pay four employees terminated in violation of § 8(a)(3) of the National Labor Relations Act (NLRA or Act) backpay of $190,000 plus interest. After the employer ignored the orders, the court held the employer's...