Wyatt Employment Law Report

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Fourth Circuit Court of Appeals Rules NLRB Recess-Appointments Were Invalid

By Edwin S. Hopson

On July 17, 2013, the U.S. Court of Appeals for the Fourth Circuit in NLRB v. Enterprise Leasing Company Southeast and Huntington Ingalls Inc. v. NLRB, joined the D.C. and Third Circuits in deciding that the President’s recess appointments to the NLRB were invalid.  The Court’s panel was  split 2 to 1, with Senior Judge Hamilton writing for the majority, joined by Judge Duncan, and with dissenting Judge Diaz arguing in favor of the government’s position.

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Court of Appeals Rules Recess Appointments to the NLRB Were Invalid

By Edwin S. Hopson

On January 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Noel Canning v. National Labor Relations Board, et al., No. 12-1115, holding that the order issued by the NLRB in the case was invalid in that the NLRB lacked a quorum of properly appointed members.  On January 4, 2012, President Obama had purported to recess-appoint new members to the five-member board so as to permit the NLRB to have a quorum and continue to operate.  At the time, Republican members of the Senate objected, contending that the Senate was not in recess.  The NLRB’s decision in Noel Canning was issued after the January 4, 2012 recess appointments.

The D.C. circuit court, in an opinion by Chief Judge Sentelle, stated, in part:

“In short, we hold that ‘the Recess’ is limited to intersession recesses. The Board conceded at oral argument that the appointments at issue were not made during the intersession recess: the President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. 158 Cong. Rec. S1 (daily ed. Jan. 3, 2012). Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated. See 29 U.S.C. § 153(b); New Process Steel, 130 S. Ct. at 2644–45.”

The effect of this decision will be wide-spread.  Every Respondent against whom the NLRB issues an unfavorable decision has the right to appeal it to the D.C. Circuit (as well as the circuit court in which the Respondent does business).  Therefore the validity of virtually all the NLRB’s decisions going forward are placed in doubt as to their validity.

The fastest and best solution would be for the Democrats and Republicans in the Senate to put together a consensus package of nominees to be quickly confirmed and put in place at the NLRB.  As it stands, there is only one member (out of 5 slots) filled by a properly confirmed board member, Chairman Pearce.

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U.S. Senators File Brief Seeking to Invalidate the President’s Recess Appointments to NLRB

By Edwin S. Hopson

On September 26, 2012, U.S. Senate Minority Leader, Mitch McConnell, announced that he and 41 other Senators had filed an amicus curiae brief in the U.S. Court of Appeals for the District of Columbia in Noel Canning v. NLRB, Nos. 12-1115, 12-1153, challenging the constitutionality of the recess appointments made on January 4, 2012, to the National Labor Relations Board by President Obama.

McConnell stated, in part, in a press release, “[t]he President’s decision to circumvent the American people by installing his appointees at a powerful federal agency while the Senate was continuing to hold sessions, and without obtaining the advice and consent of the Senate, is an unprecedented power grab.”

In the brief filed with the court, the Senators’ lawyers who prepared and filed the brief led off with:

“The President’s January 4, 2012 recess appointments to the National Labor Relations Board deprived the Senate of two powers it does possess to protect a purported power the President does not.”

Should the NLRB ultimately lose this case, all decisions rendered by the Board since January 4, 2012, would likely be voided and of no effect.

A ruling by the court of appeals could take several months.  In any event, whoever loses will likely seek an appeal to the U.S. Supreme Court.