U.S. High Court Nixes President’s Recess Labor Board Appointments

U.S. High Court Nixes President’s Recess Labor Board Appointments

 WASHINGTON, D.C. — (Mealey’s) The U.S. president may fill any existing vacancies of “officers of the United States,” whether occurring before or during a recess, under the “recess appointments clause” of the Constitution, Article II, Section 2, Clause 3, during any recess—both intrasession or intersession—as long as the recess is sufficiently long, a split U.S. Supreme Court ruled this morning (National Labor Relations Board v. Noel Canning, a Division of the Noel Corp., et al., No. 12-1281, U.S. Sup.; See January 2014, Page 5) [lexis.com subscribers may access Supreme Court briefs and the opinion for this case].

However, the court was unanimous in ruling that the president’s 2012 appointments to the National Labor Relations Board (NLRB), that spawned the appeal, were inappropriate because they were made during a three-day recess, a length that even the solicitor general agreed was too short.

Justice Stephen G. Breyer wrote for the majority that the court’s decision does not mean that any recess appointment may be made as long as the recess is more than three days.  Turning to history, the justice wrote that there are no examples of a recess appointment made during an intrasession recess shorter than 10 days and there are few examples of recess appointments made during intersession recesses shorter than 10 days.  “We therefore conclude, in light of historical practice, that a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.  We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance — a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response — could demand the exercise of the recess appointment power during a shorter break.  (It should go without saying — except that JUSTICE SCALIA compels us to say it — that political opposition in the Senate would not qualify as an unusual circumstance.),” Justice Breyer wrote.

Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined in the opinion.

Concurring Opinion

Justice Antonin Scalia filed an opinion concurring in judgment only, in which Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel Anthony Alito Jr. joined.

He agreed that the NLRB appointments in question were invalid.  However, he opined that the majority’s opinion provides too much power to the executive branch.  “The Court’s decision transforms the recess-appointment power from a tool carefully designed to fill a narrow and specific need into a weapon to be wielded by future Presidents against future Senates,” Justice Scalia wrote.  “To reach that result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best.  The majority’s insistence on deferring to the Executive’s untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a diminution of this Court’s role in controversies involving the separation of powers and the structure of government.”

Justice Scalia opined that a recess should include only gaps between the Senate’s formal sessions, not any break in the Senate’s proceedings.  In addition, he ruled that the majority erred in finding the President has the power to fill any vacancy that exists during a recess, regardless of when the seat opened.  “I would hold that the recess-appointment power is limited to vacancies that arise during the recess in which they are filled, and I would hold that the appointments at issue here — which undisputedly filled pre-recess vacancies — are invalid for that reason as well as for the reason that they were made during the session.  The Court’s contrary conclusion is inconsistent with the Constitution’s text and structure, and it further undermines the balance the Framers struck between Presidential and Senatorial power,” Justice Scalia wrote.

Case History

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.

Board Consideration

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.”  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.  Oral arguments were held Jan. 13.


Solicitor General Donald B. Verrilli Jr. 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.  Noel J. 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.

Miguel A. 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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