May 2013 FBA Third Circuit Labor andEmployment Law Update

Posted on Thursday, June 13th, 2013.

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May 2013 FBA Third Circuit Labor and Employment Law Update

Stephen E. Trimboli, Esq.
Trimboli & Prusinowski, LLC

In NLRB v. New Vista Nursing and Rehabilitation, decided May 16, 2013, a panel of the Third Circuit Court of Appeals, by a 2-1 decision over a spirited dissent, joined the District of Columbia Court of Appeals1 in holding that President Obama’s recess appointments to the National Labor Relations Board were unconstitutional. Like the District of Columbia Circuit, the Third Circuit struck down a Board determination in which an unconstitutionally-appointed recess appointee was necessary for the existence of a quorum. Also like the District of Columbia Circuit, the Third Circuit held that the President’s power to make recess appointments arises only during “intersession” recesses that occur between sessions of the Senate, and not during so-called “intrasession” recesses. In reaching this determination, the Third Circuit engaged in a long, searching analysis of the Recess Appointments Clause of the Untied States Constitution. Further, the Third Circuit raised the issue sua sponte, addressing a specific appointee that no party had challenged previously.

The underlying issue in New Vista was the employer’s objection to the Board’s certification of a union for the employer’s Licensed Practical Nurses (LPNs). The employer argued that the LPNs were supervisors who were not lawfully entitled to unionize. Because certification determinations are not appealable, the employer sought to challenge the Board’s determination by refusing to bargain with the union, thereby incurring an unfair practice charge that was litigated before a three-number “delegee group” of the Board. Under 29 U.S.C. Section 153 (b), the five-member Board may “delegate to any group of three or more members any or all the powers it may itself exercise.” These delegee groups must maintain a membership of three in order to exercise the delegated authority of the Board. This is where matters became complicated.

On August 26, 2011, the three-member delegee group of the Board issued an order finding that the employer had committed an unfair practice by refusing to bargain with the LPN union. However, the order was not mailed to the parties until August 29, 2011. Significantly, one Member of the delegee group, Wilma Liebman, resigned from the Board on August 27, 2011. This caused the employer to argue that the unfair practice decision had not been “issued” until the date of mailing, that the delegee group consisted of only two members at the alleged date of issuance, and that the order was therefore ultra vires.

The employer subsequently moved for reconsideration on this ground. On December 30, 2011, the Board denied the employer’s application. This, in turn, led the employer to file two additional reconsideration motions. The first argued that the delegee group that had considered the first reconsideration motion was improperly constituted because one of the panelists had been recused from the case. The second argued that one of the panelists on the December 30 delegee group was a recess appointee whose term had concluded at the end of senate’s 2011 session, which the employer contended occurred on December 17, 2007.

When the second round of reconsideration motions was denied on March 15, 2012, the employer filed yet a third motion for reconsideration, reiterating its objection to the December 30 delegee group, and further arguing that the March 15 delegee group was also invalidly constituted because two of its three members were allegedly appointed invalidly under the Recess Appointment Clause while the Senate was not in recess.

In the interim, the Board had filed a petition for enforcement with the Third Circuit, which effectively was held in abeyance while the reconsideration applications were pending. The employer sought Third Circuit review after its third round of reconsideration motions had been denied. At that point, the two appeals were consolidated and permitted to proceed.

Thus, the employer’s arguments in the case focused on whether Member Liebman’s resignation two day prior to the mailing of the unfair practice order rendered that order ultra vires, and contended that the delegee panels that had heard its various reconsideration motions were not properly constituted due to the presence of allegedly invalid recess appointees, and of a recess appointee who’s term had expired. The validity of the delegee group that had issued the original August 26, 2011, order had not been challenged by either party. Nonetheless, the Third Circuit panel majority raised the issue sua sponte.

Specifically, the majority noted that one member of the August 26, 2011, delegee group, Craig Becker, was himself a recess appointee who had been appointed on March 27, 2010, during a two-week intrasession “adjourning” of the senate. Reasoning that the three-member requirement of 29 U.S.C. Section 153 (b) was a jurisdictional requirement, the majority concluded that a challenge to Member Becker’s recess appointment could “be raised by a party or by this court at any point in litigation as a jurisdictional defect.” The majority’s analysis of the recess appointment power thus was premised on Member Becker’s recess appointment.

Before addressing Becker’s appointment, however, the majority addressed and rejected the employer’s argument that Member Liebman’s resignation prior to the mailing of the unfair practice order had rendered that order ultra vires. The date of the order itself, not the date of the ministerial act of mailing the order, controls. Member Liebman had been an active member on the date the order was signed and had been listed as a member having made the decision. Therefore, her subsequent resignation did not render the order ultra vires.

The majority then turned its attention to the recess appointment issue.

First, the majority considered and rejected an argument presented by an amicus that the definition of the word “recess” within the Recess Appointments Clause was a non-justiciable political question. The majority rejected the argument that the Recess Appointments Clause allocates to the President the right to determine whether a recess exists, finding no support in the text to that clause for such a conclusion. The majority also rejected the suggestion that there were no “judicially manageable standards” for defining a “recess of the Senate.” The majority identified three potential definitions of a Senate recess and found that each of them constituted a judicially manageable standard. The majority concluded:

This task falls within the “province and duty of the judicial department to say what the law is.” [citation omitted] This “duty will sometime involve the ‘[resolution] of litigation challenging the constitutional authority of one of the three branches,’ but courts cannot avoid their responsibility merely ‘because the issues have political implications.’” [citation omitted] Thus, “the fact that the resolution of the merits of a case would have ‘significant political overtones does not automatically invoke the political question doctrine.’” [citation omitted] That the issue presented here touches on political events of the day is not dispositive of whether this case presence a non-justiciable question.

After thus disposing of the justiciability argument, the majority then embarked on a detailed, lengthy, and thoughtful analysis of the Recess Appointments Clause, its specific language, the context in which it appears, its relationship to the general Appointments Clause, relevant writings of the Founders, colonial and early State constitutional practice, contemporary Parliamentary procedure in Great Britain, and historical practice pertaining to recess appointments. Particular weight was given to Federalist Number 67 (Alexander Hamilton), which explained that the Recess Appointments Clause is “nothing more than a supplement” to the general Appointment Clause that establishes “an auxiliary method of appointment, in cases to which the general method is inadequate.” The recess appointment power was this defined as an auxiliary, and not alternate, means of appointment, with the preferred process being senatorial advice and consent to presidential appointments.

The Recess Appointments Clause states that the “President shall have the power to fill up all vacancies that happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” U.S. Const. Art, II, Section 2, Clause 3. The phrase, “during the recess of the Senate,” is susceptible to three possible meanings: (1) intersession breaks which occur during the period between the sessions of the Senate, when the Senate is by definition not in session and therefore unavailable; (2) breaks that occur during the session of the senate (intrasession breaks) that are of significant duration; and, (3) any recess or adjournment of the Senate during which the Senate is unavailable to receive a nomination and act upon it. The employer argued for the first definition; the Board for the third.

Historically, until 1921, Presidents had generally adopted the first definition of “recess,” limiting their recess appointments to intersession recesses. Beginning in 1921, based upon an opinion issued by Attorney General Harry Daugherty, who served under President Harding, Presidents began to adopt the second definition, deeming themselves entitled to make recess appointments during intrasession breaks of significant duration, generally of at least ten days’ length. It was not until 2012 that the President began to assert the third potential definition of “recess.”

After engaging in lengthy, detailed and thoughtful analysis, the New Vista majority came to the conclusion that the first definition was most consistent with the Framers’ intent that the recess appointment be an auxiliary, and not alternative, means of making presidential appointments, and most consistent with the sharing of the appointment power between the President and the Senate envisioned by the general Appointments Clause. “The ‘main purpose’ of the Recess Appointments Clause, therefore, is not – – as the Eleventh Circuit held and the Board argues – – only ‘to enable the President to fill vacancies to ensure the proper functioning of our government’ [citation omitted]. This formulation leaves out a crucial aspect of the clause’s purpose: the preserve the Senate’s advice and consent power by limiting the President’s unilateral appointment power.”

On this ground, the majority had little difficulty rejecting the Board’s argument in favor of the third potential definition:

The problem with this definition is that the Senate fulfills these criteria whenever its members leave for the weekend, go home for the evening, or even take a break for lunch. In each of these instances, the Senators have no duty to attend, the Senate chamber is empty, and the body cannot receive messages from the President.

Defining recess in this way would eviscerate the divided-powers framework the two Appointments Clauses establish. If the Senate refused to confirm a president’s nominees, then the president could circumvent the Senate’s constitutional role simply by waiting until senators go home for the evening. The exception of the Recess Appointments Clause would swallow the rule of the [general] Appointments Clause.

The New Vista majority found the choice between the first and second potential definitions to be a closer call, but nonetheless concluded that the first definition was more consistent with the overall purpose of the two clauses. In this regard, the majority gave significant weight to the fact that a recess appointee serves until the end of the Senate’s next session. The majority reasoned that a core purpose of the Recess Appointments Clause was to grant the Senate one opportunity to consider the recess appointee during its next following session. Because the Senate would not have to wait until its “next session” to consider an intrasession appointee, the “next session” language strongly indicated that the Framers had envisioned recess appointments being made only during the intersession recess.

The majority reasoned:

Under an intrasession definition, the Clause would no longer have an auxiliary role. The president would make the recess appointment during a break within a Senate session. But the Senate’s reconvening and first subsequent adjournment – – whether that be for a long intrasession break or for the intersession break – – would have no immediate effect on the recess appointment because the appointment lasts until the “next session,” as demarked by adjournments sine die. The appointment would not expire until the Senate reconvened, adjourned sine die, reconvened and then adjourned sine die a second time. Thus, the appointment would continue even though the opportunity to undergo the ordinary, preferred process had come and gone. This shows that when the intrasession definition of recess is combined with durational provision, a fundamentally different relationship between the clauses is created: the intrasession definition makes the Recess Appointments Clause an additional rather than auxiliary method of appointing officers. The durational provision thus indicates the most natural reading of the Clause defines recess to mean intersession breaks only.

The majority found further support for its determination in “the Supreme Court’s direction that ‘the doctrine of separation of powers is a structural safeguard’ which has as one of its “major features” the “[the establishment of] high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict.” Defining the “recess of the Senate” as including only intersession breaks was a clear, easily identifiable standard that lacked the ambiguity inherent in the other two potential definitions.

Judge Greenaway wrote a long, strongly worded dissent in which he rejected the majority’s reasoning and indicated that he would apply the Recess Appointment Clauses to all intrasession and intersession breaks of the senate. “The inclusion of intrasession recesses in the ambit of the Recess Appointments Clause is the interpretation most faithful to the text of the Constitution, the intent of the Framers, the purpose of recess appointments, and the traditional practice of both the President and the Senate.”

The Third and District of Columbia Circuits have now held that the Recess Appointments Clause is limited to intersession appointments. The Eleventh Circuit alone has upheld intrasession recess appointments. This split in the Circuits on a question of vital constitutional importance, as well as Judge Greenaway’s dissent, all but guarantees that this matter will ultimately be taken up by the Supreme Court. In the meantime, the New Vista decision calls yet further into question the ability of the Board to take enforceable action given its current composition.

1 Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 490), petit. for cert. pending.
2 Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), cert. den., 544 U.S. 942 (2005)

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