Tag Archive: NLRB

Mar 25

NLRB Appeals to Supreme Court

 

The National Labor Relations Board (NLRB) announced on March 12, 2013, that it had decided it will not seek en banc rehearing of the Noel Canning v. NLRB decision. (Noel Canning Div. of Noel Corp., D.C. Cir., No. 12-1115, action announced 3/12/13).  In that decision, the U.S. Court of Appeals for the D.C. Circuit ruled that the January 4, 2012, recess appointments of three members to the Board were invalid.  After consultation with the Justice Department, the Board announced its intention to file a petition for certiorari with the Supreme Court to review the Noel Canning decision.

The Noel Canning court held that President Obama’s appointment of three members to the Board did not comply with the requirements of the Recess Appointments Clause.  It has been widely observed that the D.C. Circuit’s decision calls into question hundreds of decisions rendered by the National Labor Relations Board over the past year.  If the Supreme Court affirms the lower court’s decision, all of these decisions would appear to be invalid.  NLRB Chairman Mark Gaston Pearce vowed to fight the court’s decision shortly after the D.C. Circuit released its opinion. Chairman Pearce issued a statement that the NLRB “believes that the President’s position in the matter will ultimately be upheld.”  In the interim, Chairman Pearce announced that the Board will continue to fulfill its statutory mandate and issue decisions.  Although the Board’s decision has met with a fair amount of criticism, Chairman Pearce appears unfazed by calls that the Board should abide by the Circuit’s decision.

The Labor Board has until April 25th to file its petition for certiorari.

Feb 04

The D.C. Circuit Invalidates NLRB Recess Appointments

In its recent decision, Canning v. NLRB,[1] the Court of Appeals for the D.C. Circuit vacated a National Labor Relations Board (“NLRB”) order, ruling that the Board lacked a quorum because three of its members were invalidly appointed.[2]  Although President Obama attempted to appoint three of the Board’s members under the authority of the Recess Appointments Clause of the Constitution,[3] the D.C. Circuit concluded that the appointments were constitutionally invalid.[4]  The decision suggests that nearly two hundred years of presidential recess appointments may be invalid exercises of executive power.[5]

The first issue the court addressed pertained to the meaning of “recess” in the Recess Appointments Clause.  At the time President Obama made the three recess appointments to the NLRB, the Senate was holding pro forma sessions every three business days between December 20, 2011 and January 22, 2012.[6]  Despite an agreement stating that no business was to be conducted during those pro forma sessions, the Senate conducted business twice during that time period.[7]  The court concluded that only “the”[8] intersession recess of the Senate provides an appropriate opportunity for recess appointments, distinguishing other “adjournments” or “generic break[s] in proceedings” as insufficient to confer appointment authority.[9]  Because the court believed the Senate had only “broken for three days within an ongoing session,” it concluded that it was “not in ‘the Recess.’”[10]  The court cited separation of powers concerns and the original meaning of the term according to the Framers in support of its interpretation.[11]

Although the court acknowledged that its holding regarding the meaning of the term “Recess” would have been sufficient to vacate the Board’s order, it nevertheless continued to address a second constitutional issue:  the meaning of the word “happen” in the Recess Appointments Clause.[12]  On this issue, the court concluded that because the vacancies in Board membership did not “happen” during “the Recess,” the president lacked authority to make recess appointments.[13]  The court rejected three other circuits’ interpretation that the word “happen” in the Recess Appointments Clause includes all vacancies that “exist,” relying heavily on an originalist reading of the Constitution.[14]

This decision has already generated substantial criticism.[15]  Some have expressed concern that the court’s reading of the term “recess” suggests that the Senate can continue holding pro forma sessions to thwart presidential appointments indefinitely.[16]  Others are concerned that the decision threatens the status of hundreds of NLRB decisions.[17]

Despite the apparent force of the D.C. Circuit’s ruling, there are appeals pending in other circuits that will also address this conflict.[18]  Regardless of the outcomes of those decisions, however, it appears extremely likely that the Supreme Court will ultimately decide whether the recess appointments to the Board were valid.[19]  Because recess appointments can contribute to the smooth functioning of government, especially in times of political partisanship, the Supreme Court should carefully consider this issue and not read the Recess Appointments Clause unduly narrowly so as to completely impede use of the Recess Appointment power.


[1] Nos. 12–1115, 12–1153, 2013 WL 276024 (D.C. Cir. Jan. 25, 2013).

[2] See id. at *23.

[3] U.S. Const. Art. II, § 2, cl. 3 (“The 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.”).

[4] Canning, 2013 WL 276024, at *7.

[5] See Charlie Savage & Steven Greenhouse, Court Rejects Obama Move to Fill Posts, N.Y. Times, Jan. 25, 2013, at A1 (“Presidents have used recess appointments to fill vacancies that opened before a recess since the 1820s, and have made recess appointments during Senate breaks in the midst of sessions going back to 1867.”).

[6] See id. at *7.

[7] Id. (explaining that the Senate acted twice between December 20, 2011 and January 22, 2012:  once to pass a temporary extension to the payroll tax; once to fulfill its constitutional duty to meet on January 3).

[8] An extended discussion of the significance of the word “the” and its difference from “a” or “an” appears in the court’s opinion.  Id. at *8.

[9] Id. at *8-*9 & *16 (differentiating between “recesses” and “the Recess” and concluding that the latter only refers to the intersession recess, not to other adjournments).

[10] Id. at *9.

[11] Id. at *11-*12.

[12] Id. at *16 (quoting U.S. Const. Art. II, § 2, cl. 3) (“The 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.”).

[13] Id. at *23.

[14] Id. at *17 -*19 (quoting Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962)) (emphasizing that the other circuits’ analysis was misguided because they “did not focus their analyses on the original public meaning of the word ‘happen.’”).

[16] Id. (“[T]he opinion essentially said that the Senate need almost never be in recess; a handful of senators could create ‘pro-forma’ sessions that would trump any President’s ability to make appointments.”).

[17] See, e.g., Robert Barnes & Steven Mufson, Court Says Obama Exceeded Authority in Making Appointments, Jan. 25, 2013 (describing several labor leaders’ reactions to the decision).

[18] See id.

[19] See Toobin, supra note 12.

Jan 03

Irrelevant! Irrelevant on All Counts! – But You Still Have to Respond: The NLRB’s Order in IronTiger Logistics, Inc.

On October 23, 2012, the National Labor Relations Board (NLRB or the Board) issued an order in IronTiger Logistics, Inc. and International Association of Machinists and Aerospace Workers, AFL-CIO[1].  The case was decided by a three-member panel of the Board; the panel consisted of Chairman Pierce and Members Hayes and Block[2].  The case centered on whether IronTiger had violated Section 8(a)(1) and Section 8(a)(5) of the National Labor Relations Act (NLRA or the Act).  The NLRB affirmed the ruling of the Administrative Law Judge (ALJ), which held a violation did occur[3].

IronTiger Logistics, Inc. (IronTiger) is based out of Kansas City, Missouri, and “employs approximately 100 employees at four locations[4].”  The main business of IronTiger is moving freight[5].  The company has a close relationship with another company, TruckMovers.com, Inc. (TruckMovers), which assigns loads to both IronTiger drivers and TruckMovers drivers[6].  IronTiger’s drivers are unionized; TruckMovers’ drivers are not unionized[7].  The union and IronTiger signed a Letter of Agreement which clarified that any loads that were given to TruckMovers drivers would not be considered IronTiger loads, meaning the loads were not work that was being subcontracted by IronTiger to avoid using union drivers[8].

The union began to suspect that the dispatching process was not working as it was supposed to.  It believed IronTiger was not placing all of the available loads on its dispatch board and that, as a result, TruckMovers drivers were getting assignments that should have been going to union drivers[9].  The union filed a grievance on March 29, 2011, and a few weeks later requested information pertaining to the loads that had been assigned to all drivers by TruckMovers, which IronTiger provided[10].  The union then requested additional detailed information regarding the loads on the list IronTiger had provided; in part, the union requested the name of the driver that had been assigned to each load, the destination each load was delivered to, and “relevant communication” from the entities receiving each load[11].  After IronTiger did not respond to the request for additional information, the union filed an unfair labor practice claim with the NLRB[12].  Eventually, IronTiger responded to the union’s request by stating that the information about the loads assigned to TruckMovers drivers had no bearing on the union’s claim, as those drivers were not members of the union[13].  IronTiger further stated that it did not have to provide the information requested pertaining to its drivers, members of the union, because the shipments in question had already been delivered and, therefore, the information being requested was not relevant[14].

Section 8(a)(5) of the Act places a duty on the employer to respond to requests from the union for information that is relevant to the union complying with its responsibilities to its members[15].  The employer must provide the response in a “timely manner[16].”  The ALJ held that the information requested by the union in this case was “presumptively relevant” to the union’s objective[17].  As such, IronTiger was required to respond to the union’s request in a timely manner, even if the response simply explained why IronTiger believed it did not have to provide the information to the union[18].  The ALJ further held that the information the union had requested was, indeed, irrelevant to the union’s claim and, therefore, IronTiger was not required to provide the information[19].

The Board upheld the ALJ’s determination, stating that the issue in this case was whether IronTiger had to respond to the request, not whether IronTiger had to provide the requested information[20].  The Board cited a “well-established corollary” to Section 8(a)(5) which requires an employer to respond to a request for information from a recognized union, regardless of whether the employer believes it must actually provide the information that has been requested[21].  The information being requested must only be presumptively relevant to trigger the duty of the employer to respond[22].  In the Board’s view, it is appropriate to place the burden on the employer to respond because the employer “is in a clearly superior position to ensure that a dispute is avoided[23].”

Member Hayes dissented to the order, stating his belief that the corollary to Section 8(a)(5) cited by the majority does not exist, but rather that information is either relevant or irrelevant[24].  In the case that the information is irrelevant, the employer should not be required to respond, according to Member Hayes, because it would open the door for unions to request information for strategic reasons that have no bearing on collective bargaining[25].


[1] Case 16-CA-027543.

[2] Id.

[3] Id at 1.

[4] Id at 4.

[5] Id.

[6] Id at 1.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id at 2.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id at 3.

[24] Id.

[25] Id.

Oct 29

Navigating the NLRB’s New Preemption Decisions

The National Labor Relations Board (“NLRB”) recently decided a pair of cases that raised important issues about the nature of federal preemption.[1] These companion cases both explored the dimensions of so-called “Garmon” preemption,[2] a doctrine that limits states’ role in regulating activity that is subject to federal regulation pursuant to the National Labor Relations Act (“NLRA” or “Act”).[3] While the decisions reaffirmed traditional preemption principles, they expanded the reach of the NLRB’s power to find that filing certain types of state court lawsuits amounts to an unfair labor practice and to enjoin these state court lawsuits when they are preempted by federal law.

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