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WASHINGTON, D.C. — The U.S. president has the power to fill vacancies on the National Labor Relations Board during both inter-session and intra-session recesses, the U.S. solicitor general told the U.S. Supreme Court this morning during arguments in a closely watched appeal (National Labor Relations Board v. Noel Canning, a Division of the Noel Corp., et al., No. 12-1281, U.S. Sup.; See October 2013, Page 5).
“The interpretation of the Recess Appointments Clause that Respondent urges would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington, and going forward, it would diminish presidential authority in a way that is flatly at odds with the constitutional structure the Framers established,” Solicitor General Donald B. Verrilli Jr. told the U.S. high court, presenting oral arguments on behalf of the NLRB.
However, the solicitor general also took his argument of executive power a step further and argued that a president must also be allowed to fill vacant positions when the U.S. Senate fails to confirm nominations.
“You know, perhaps it sounds like this is an aggressive assertion of executive authority, but I’d ask the Court to think back to Federalist 51. And what the Framers were most concerned about was that Congress, in the separation of powers calculus, was going to amass authority and drain authority and energy from the Executive, and therefore, the Executive needed to be fortified against those actions by Congress. And one specific way in which the Framers decided to fortify the Executive was by rejecting the notion that the appointment power should reside with the Senate. The Framers considered that and they rejected it. And the reason they rejected it . . . was to protect the Executive against encroachment by the legislature,” the solicitor general argued.
Noel Canning, which bottles and distributes Pepsi-Cola products, had negotiated a series of collective bargaining agreements (CBAs) with the International Brotherhood of Teamsters, Local 760, back to the 1940s. When the most recent agreement expired April 30, 2010, the parties began negotiations for a new one.
During five bargaining sessions, the parties resolved all but two issues — wages and pension plans. Written proposals were exchanged throughout negotiations, and at the final bargaining session on Dec. 8, 2010, both oral and written proposals were made. The company made two alternate proposals, and the union suggested that the membership vote. After the union reviewed the terms of each proposal while everyone was still at the bargaining table, all representatives of the parties orally agreed that the company’s treasurer would reduce the proposals to writing, send them to the union and hold the vote in the company’s meeting room.
One of the unit employees who had participated in the final day of negotiations discussed the proposals with his co-workers, the majority of whom expressed a preference for one of the proposals over the other. He also discussed the two proposals with a company representative, who said both sides got “a good deal.” Later that day, the company sent the union an email titled “Proposals,” which contained descriptions of two proposals for the terms of the new CBA that differed from the previous versions of the proposals it had sent. The union replied with an email setting forth the terms to which the parties had agreed for the vote, and it posted notices that there would be a vote for a new contract on Dec. 15, 2010, in the company’s meeting room.
A union representative called the company’s president to ask why the proposals had been changed. The president said it had not been a written agreement and that it was his right to make decisions on behalf of the company. The union representative told the president that the vote would be held on the terms discussed at the Dec. 8 meeting.
The vote was held as scheduled, and the employees voted 37-2 in favor of the first proposal the company had made, the one that the unit employee who participated in negotiations had favored. When the company’s president was informed, he sent two letters to the union — one stating that it was not appropriate to vote on an offer that was not made by the employer and that the parties were now at an impasse and the second stating that the union should direct all future communications to the company’s attorney.
When the company received the written CBA and refused to sign it, the union filed an unfair labor practice charge with the NLRB. It claimed that the company had violated the National Labor Relations Act (NLRA) by refusing to sign a CBA embodying the oral agreements they had reached as to the bargaining unit’s terms and conditions of employment during negotiations. An administrative law judge (ALJ) found that the parties had verbally agreed to the substantive terms of a CBA and that the company had violated the NLRA by refusing to abide by them.
The company filed exceptions with the NLRB. A three-member panel of the NLRB, composed of members Brian Hayes, Terence F. Flynn and Sharon Block, affirmed the ALJ’s finding in a decision dated Feb. 8, 2012. On that date, the NLRB purportedly had five members. Two members, Chairman Mark G. Pearce and Hayes, had been confirmed by the Senate on June 22, 2010. The three other members were appointed by President Obama on Jan. 4, 2012.
Block filled a seat that became vacant on Jan. 3, 2012, when board member Craig Beck’s recess appointment expired. Flynn filled a seat that became vacant on Aug. 27, 2010, when Peter Shaumber’s term expired. The third member, Richard F. Griffin, filled a seat that became vacant on Aug. 27, 2011, when Wilma B. Liebman’s term expired.
At the time of the president’s recess appointments on Jan. 4, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from Dec. 20, 2011, through Jan. 23, 2012.
Appellate Court Review
Noel Canning petitioned the District of Columbia Circuit U.S. Court of Appeals for review of the NLRB’s decision that it violated the NLRA. The NLRB cross-petitioned for enforcement of its order.
Noel Canning argued that the NLRB did not have a quorum for the conduct of business on Feb. 8, 2012, because the last three members of the NLRB were invalid under the “recess appointments clause” of the Constitution, Article II, Section 2, Clause 3. The NLRB argued that despite the president’s failure to comply with the “senate vacancies clause” (Article II, Section 2, Clause 2), he validly made the appointments under the recess appointments clause, which provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Noel Canning countered that that clause is inapplicable because the Senate was not in recess at the time of the appointments and the vacancies did not happen during the recess of the Senate.
On Jan. 25, the Circuit Court panel declined to enforce the NLRB ruling that Noel Canning violated the NLRA by refusing to reduce the oral agreement to writing and signing off on the CBA, after finding that the NLRB could not lawfully issue its February 2012 ruling because it lacked a quorum.
Chief Judge David B. Sentelle wrote for the panel: “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. . . . 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.”
In addition, the appellate panel found that the relevant vacancies did not arise during the intersession recess of the Senate, thus allowing for a recess appointment.
Judges Karen LeCraft Henderson and Thomas B. Griffith joined in the opinion.
The NLRB decided not to seek an en banc rehearing of the D.C. Circuit panel’s Jan. 25 decision and instead petitioned the U.S. Supreme Court. Noel Canning, in its respondent brief, did not oppose certiorari and also urged the high court to take on the appeal.
The high court granted certiorari on June 24.
Noel J. Francisco of Jones Day, arguing on behalf of Noel Canning, told the high court that the government’s proposal would eliminate an important check on executive power. “The government’s position . . . would eviscerate that check, creating a unilateral appointment power available for every vacancy at virtually any time with advice and consent to be used only when convenient to the President,” he argued.
When questioned by Justice Ruth Bader Ginsburg about his argument destroying the recess clause, Francisco responded that it merely appears that way as the recess appointment power is a contingent power. “It arises only when the Senate chooses to trigger it by ending its session and beginning its recess. So the Senate always has the power to prevent recess appointments,” he argued. However, he continued, “the President [has] corresponding powers. If the President thinks that the Senate is being derelict in its duties, he can convene an emergency session, and he can force the Senate to consider his nominees. And if they refuse, he can subject them to withering criticism for being derelict in their responsibilities. But one—the one thing that the President may not do is force the Senate to act against its will, not should the President be permitted to do—and run around the Senate’s refusal to act, because that conception of the Recess Appointments Clause is at war with advice and consent itself.”
Miguel A. Estrada of Gibson, Dunn & Crutcher presented oral arguments on behalf of Senate Republican Leader Mitch McConnell and 44 other members of the U.S. Senate in support of Noel Canning.
“[T]his case fundamentally is about who gets to decide whether the Senate is in recess, the Senate or the President? Our submission today is that the Senate gets to decide whether the Senate is in recess,” Estrada told the high court justices.
Turning to the arguments about what the framers of the U.S. Constitution intended, Estrada told the high court that “[w]hat the Framers contemplated in coming up with a joint power of appointment was you have to act jointly. You have to play nice. And in a country of 300 million people, when the president wants a nominee and the Senate does not agree, it is always possible for the president to come up with another nominee who is even more qualified and acceptable to the Senate. The key here is acceptable to the Senate. He has to be able to proffer someone to the Senate that the Senate is willing to engage in a joint power of appointment for.”
Solicitor General Verrilli in Washington represents the NLRB.
James B. Coppess of the American Federation of Labor and Congress of Industrial Organizations in Washington represents the International Brotherhood of Teamsters Local 760. Francisco of Jones Day in Washington represents Noel Canning.
Brian W. Bulger of Meckler, Bulger, Tilson, Marick & Pearson in Chicago filed an amicus brief on behalf of himself, Tammie L. Rattray and David A. Wimmer. William S. Consovoy of Wiley Rein in Washington filed an amicus brief on behalf of the Atlantic Legal Foundation and the Justice Foundation.
Estrada of Gibson, Dunn & Crutcher in Washington filed an amicus brief on behalf of McConnell and 44 other members of the U.S. Senate. Peter J. Ferrara of Falls Church, Va., filed an amicus brief on behalf of the American Civil Rights Union.
Sean R. Gallagher of Polsinelli Shughart in Denver filed an amicus brief on behalf of Independence Institute. Shannon L. Goessling of Southeastern Legal Foundation Inc. in Marietta, Ga., filed an amicus brief on behalf of the Southeastern Legal Foundation.
Allyson N. Ho of Morgan, Lewis & Bockius in Dallas filed an amicus brief on behalf of political scientists and historians. Richard P. Hutchison of Landmark Legal Foundation in Kansas City, Mo., filed an amicus brief on behalf of Landmark Legal Foundation.
Jay P. Krupin of BakerHostetler in Washington filed an amicus brief on behalf of Daycon Products Co. Inc. Steven J. Lechner of Mountain States Legal Foundation in Lakewood, Colo., filed an amicus brief on behalf of Mountain States Legal Foundation.
Michael W. McConnell of Stanford, Calif., filed an amicus brief on behalf of Constitutional Law Scholars. Solicitor General John C. Neiman Jr. of Montgomery, Ala., filed an amicus brief on behalf of Alabama, Arizona, Colorado, Florida, Georgia, Idaho, Kansas, Michigan, Montana, Nebraska, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Virginia and West Virginia.
Thomas H. Odom of Bechtelsville, Pa., filed an amicus brief on behalf of the National Right to Work Legal Defense and Education Foundation Inc. and Jeanette Geary. William J. Olson of Vienna, Va., filed an amicus brief on behalf of Citizens United, Citizens United Foundation, U.S. Justice Foundation, Gun Owners of America, Gun Owners Foundation, Lincoln Institute for Research and Education, Abraham Lincoln Foundation and Conservative Legal Defense and Education Fund.
Paul J. Orfanedes of Judicial Watch Inc. in Washington filed an amicus brief on behalf of Judicial Watch and Allied Educational Foundation. Michael D. Ramsey of University of San Diego School of Law in San Diego filed an amicus brief on behalf of originalist scholars.
Robert S. Remar of San Francisco filed an amicus brief on behalf of International Longshore and Warehouse Union. Sidney S. Rosdeitcher of Paul, Weiss, Rifkind, Wharton & Garrison in New York filed an amicus brief on behalf of The Brennan Center for Justice.
Tuan N. Samahon of Villanova University School of Law in Villanova, Pa., filed an amicus brief on behalf of himself. D. John Sauer of Clark & Sauer in St. Louis filed an amicus brief on behalf of Senate Parliamentary Experts Robert B. Dove and Martin B. Gold.
Jay A. Sekulow of American Center for Law & Justice in Washington filed an amicus brief on behalf of Speaker of the U.S. House of Representatives John Boehner. Ilya Shapiro of Cato Institute in Washington filed an amicus brief on behalf of the institute.
Arthur B. Smith Jr. of Chicago filed an amicus brief on behalf of Council on Labor Law Equality. Mark E. Solomons of Greenberg Traurig in Washington filed an amicus brief on behalf of National Federation of Independent Business Small Business Legal Center.
Mark T. Stancil of Robbins, Russell, Englert, Orseck, Untereiner & Sauber in Washington filed an amicus brief on behalf of Coalition for a Democratic Workplace. Adam J. White of Boyden, Gray & Associates in Washington filed an amicus brief on behalf of State National Bank of Big Spring, the Competitive Enterprise Institute and the 60 Plus Association.
Victor K. Williams of Columbus School of Law in Washington filed an amicus brief on behalf of himself. Elizabeth B. Wydra of Constitutional Accountability Center in Washington filed an amicus brief on behalf of the center.
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