Hunton Employment & Labor Perspectives

Recently, the United States Court of Appeals for the Fifth Circuit handed down a significant ruling in the continuing conflict over the ability of employers to require employees to arbitrate employment disputes and to waive the right to class arbitration.  In a long-awaited – and, in many circles, expected – decision, the Court overturned the National Labor Relations Board’s ruling that employers violate the National Labor Relations Act by forcing employees to submit employment disputes to individual arbitration.  The Court’s decision may pave the way for employers to enforce class arbitration waivers without fear of NLRB enforcement action….at least not anytime soon.

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

NLRB v. Noel Canning: In a highly anticipated move, the Court granted the National Labor Relations Board’s request to review the U.S. Court of Appeals for the District of Columbia Circuit’s decision that President Obama’s January 2012 recess appointments to the Board were unconstitutional.  In January, the D.C. Circuit held the president may only make recess appointments during the intersession break between annual Senate sessions and that recess appointments may only be made to fill vacancies that happen during such breaks.  Since that decision, the Third Circuit also has ruled that the president may not make a recess appointment during intra-session Senate adjournments, but may only do so during intersession recesses.  The Supreme Court granted the Board’s request to review both prongs of the D.C. Circuit’s ruling.  It also requested that the parties brief the question of whether the president may make a recess appointment when the Senate is convening every three days in pro forma sessions.  President Obama’s January 2012 Board appointments were made the day after the Senate convened a pro forma session and then adjourned for three days.  Challenges to the President’s recess appointments have also been fully briefed and argued by Hunton & Williams lawyers in the Fourth and Seventh Circuits.  Regardless, the Supreme Court’s grant of certiorari in Noel Canning sets up a compelling separation of powers showdown between the Executive and the Senate regarding the scope of the Recess Appointment Clause.

On Friday, May 31, 2013, Hunton & Williams partner Michael Shebelskie argued on behalf of Big Ridge Inc. in Big Ridge Inc. v. NLRB, the lead case pending in the U.S. Court of Appeals for the Seventh Circuit in which an employer has challenged the constitutionality of President Obama’s January 4, 2012 recess appointments to the NLRB.  Mr. Shebelskie and Hunton & Williams also argued against the validity of the President’s recess appointments before the Fourth Circuit earlier this year in Huntington Ingalls Incorporated v. NLRB.  Argument in the Big Ridge case comes hot on the heels of ...

NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

Earlier today the D.C. Circuit issued its decision in Noel Canning, v. NLRB finding that President Obama’s January 4, 2012 recess appointments of NLRB members Griffin, Block and Flynn (who has since resigned) were unconstitutional.  The Court therefore concluded that the Board lacked the required quorum needed to conduct business and therefore that its ruling on the merits of the case was void.  In reaching this determination, the Court interpreted the meaning of “recess” within the Appointments Clause, finding that it referred only to intersession recesses – that is, the ...