Hunton Employment & Labor Perspectives

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 ...

Those employers hoping for an appellate court decision on President Obama’s controversial “recess” appointments to the National Labor Relations Board will have to wait a while longer.  In Richards v. NLRB, 7th Cir. No. 12-1973 (decision issued December 26, 2012), the Seventh Circuit sidestepped a ruling on the “recess” appointment question by denying the employer’s petition for review on standing grounds.

Several of our recent posts have addressed the sharp criticism directed towards President Obama in response to his recent recess appointments to the NLRB.  A new case filed in the Eastern District of New York may result in one of the first court rulings involving a challenge to the President’s authority to have made the appointments.  In Paulsen v. Renaissance Equity Holdings, LLC, No. 1:12-cv-00350-BMC, a case in which the NLRB is seeking a federal court injunction to declare an end to an employer lockout, the Defendant is contesting the action on the grounds that because three of the Board’s five members have not been validly appointed, the Board has no authority to act.

The NLRB's General Counsel, Ron Meisburg, recently announced his anticipated resignation, effective June 20, 2010.  Meisburg's departure now frees President Obama to appoint Meisburg’s successor.  While a number of names as replacement GC have surfaced, no clear front runner has emerged.

Andrew Stern’s sudden resignation as International President of the Service Employees International Union (“SEIU”) took the labor world by surprise and sparked debate about his legacy and the future of the nation’s largest and most politically powerful labor union.  The selection of SEIU Executive Vice-President Mary Kay Henry as his successor has sparked an equally intense debate about the direction she is likely to take SEIU in the future.  Many had assumed that Anna Burger, SEIU’s Secretary − Treasurer and Chair of Change to Win − not to mention Stern’s longtime protégé − was all but guaranteed the job.  However, Henry’s candidacy grew support among the members of SEIU’s Executive Council when she promised to “heal rifts” within the union caused by internal debate over Stern and the long-term viability of his organizing philosophy. The SEIU Executive Council’s rejection of Burger seemed to signal a desire at the top of SEIU for a genuine change of direction.  Yet, in the days following her election, Henry has sent mixed signals about her true intentions.

President Obama’s recent recess appointments to the NLRB leave one Republican among three liberal Democrats.  Should the opportunity present itself, the Board’s new composition will likely result in the overturning of two employer-friendly cases, Register Guard (email policy) and Oakwood Healthcare, Inc. (supervisory status). Overturning either of these cases may produce highly unfavorable results for employers.  The Board already has such an opportunity in Register Guard.  The D.C. Circuit recently remanded Register Guard for reconsideration on a limited basis, but the Board may seize the opportunity to reverse its initial holding.

In a move sure to draw fire from Republican lawmakers and segments of the business community, President Obama on Saturday issued recess appointments to place controversial candidates on the National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”).  Presidents have constitutional authority to fill vacancies without the advice and consent of the Senate when Congress is in recess, as it is now.

National Labor Relations Board (NLRB) Nominee Craig Becker needed 60 Senate votes to overcome the Republican-led filibuster blocking his confirmation, but he only received 52 votes on Tuesday. Two Democrats, Sen. Blanche Lincoln (Ark.) and Ben Nelson (Neb.), went against their party to vote him down in the cloture vote, which failed 52-33.