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Employer Responds to NLRB in Supreme Court’s Recess-Appointments Case

By Joanne Deschenaux  11/22/2013
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Noel Canning, the Washington state bottling company that is challenging President Barack Obama's appointment of three members of the National Labor Relations Board (NLRB) in January 2012, filed a brief in the U.S. Supreme Court defending its position that the appointments violated the U.S. Constitution.

In the brief, filed Nov. 18, 2013, in NLRB v. Noel Canning (No. 12-1281), the company argues that Obama appointed Democrat Sharon Block and Republicans Terence F. Flynn and Richard F. Griffin when the Senate was in session, not in recess, and, therefore, exceeded his constitutional authority to make recess appointments. “As much as Presidents may desire an escape-hatch from Senate confirmation,” the company argued, “the Constitution does not provide one.”

On Jan. 25, 2013, the U.S. Court of Appeals for the District of Columbia Circuit held that the NLRB lacked a quorum to decide an unfair-labor-practice case against Noel Canning because two of the three members on the board panel were unconstitutionally appointed. The board filed a petition for Supreme Court review of the ruling, and the court granted the petition on June 24. The NLRB filed its brief on the merits on Sept. 13.

NLRB Authority to Decide Cases in Dispute

In New Process Steel LP v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court determined that the authority of the five-seat NLRB cannot be exercised by a panel with fewer than three members.

Democrat Craig Becker's recess appointment expired on Jan. 3, 2012, leaving the board with only two members—Democratic Chairman Mark Gaston Pearce and Republican member Brian E. Hayes. On Jan. 4, Obama announced the recess appointments of Block, Flynn and Griffin to the NLRB.

The Senate had been holding pro forma sessions every three days for weeks before the president's action. The Senate’s own glossary defines “pro forma session” as follows: “From the Latin, meaning ‘as a matter of form,’ a pro forma session is a brief meeting of the Senate, often only a few minutes in duration.”

Several Republicans contended that the Senate was not in recess when Obama made the appointments.

The Justice Department released a memorandum opinion that the president had the constitutional authority to make the appointments, but Noel Canning filed a petition for D.C. Circuit review of a February 2012 unfair-labor-practice decision that stated the company violated the National Labor Relations Act when it refused to sign a collective bargaining agreement containing terms it had negotiated with International Brotherhood of Teamsters Local 760.

The board panel that decided the case included only one Senate-confirmed member (Hayes), along with recess appointees Block and Flynn. The company argued in the D.C. Circuit that the NLRB lacked the quorum needed to support its unfair-labor-practice findings and remedial order.

A three-judge panel of the D.C. Circuit found that the NLRB order against Noel Canning would otherwise have been enforceable, but it concluded that the president's recess appointments were unconstitutional.

Three Questions Presented

The Supreme Court granted review on three questions:

1) Whether the president's recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is limited to recesses that occur between Senate sessions.

2) Whether the president's recess-appointment power may be used to fill vacancies that exist during a recess or is limited to vacancies that first arose during that recess.

3) Whether the president's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

When Is the Senate ‘‘in Recess”?

The constitutional provision at issue empowers the president to fill vacancies “during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Noel Canning argues in its brief that, by linking “the Recess” to the “next Session,” “the Clause makes clear that the President may make unilateral appointments only during ‘the Recess’ between enumerated Senate Sessions.”

The brief notes that the Obama administration is attempting to give “the Recess” its colloquial meaning (every short break, rather than the formal between-session recess) while giving “next Session” its formal meaning (the enumerated session, rather than every daily session).

“That makes no sense,” the brief states, noting that the constitutional provision makes clear that the “Recess” and the “Session” are clearly alternating states.

On the second question, the brief notes that the Constitution states that the president may make recess appointments only to fill “Vacancies that may happen during the Recess.”

Noel Canning argues that this provision has long been interpreted to mean that the vacancy must arise during the recess. It states that the Obama administration claims “may happen during” actually means “happen to exist,” but that construction erases “may happen during” from the clause.

“The answer to the third question is also clear,” the brief asserts, noting that the Obama administration agrees that Senate breaks of three days or less during a congressional session do not trigger the president’s recess-appointment authority. “Here, however, the Senate convened sessions every three days throughout the supposed recess. It therefore was not in ‘the Recess of the Senate’ under the Executive’s own test.”

The court has scheduled oral arguments in the case for Jan. 13, 2014.

Joanne Deschenaux, J.D., is SHRM’s senior legal editor. 


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