As noted earlier this month, the National Labor Relations Board announced that it, in consultation with the Department of Justice, intends to file a petition of certiorari with the United States Supreme Court in Noel Canning v. NLRB rather than seek an en banc rehearing with the D.C. Circuit Court of Appeals. In Noel Canning, the D.C. Circuit determined that President Obama’s recess appointments of Sharon Block, Terrence Flynn, and Richard Griffin to the Board were not valid, and thus the Board lacked a quorum to act. The petition for certiorari must be filed by April 25, 2013.

The Department of Justice formally articulated its position regarding Noel Canning late last month when it submitted a letter brief to the Third Circuit Court of Appeals in NLRB v. New Vista Nursing & Rehabilitation. The Justice Department asserts that the Third Circuit should not follow the D.C. Circuit’s interpretation of the word "the" before "Recess" in the Constitution because it is inconsistent with how "the" is used in other parts of the Constitution:

The court reasoned that the definite article “suggests specificity.” Ibid. But as the en banc Eleventh Circuit explained, the word “the” can also—as it does here—refer generically to a particular class of things, e.g., “the pen is mightier than the sword,” rather than a particular thing, e.g., “the pen is on the table.” Evans, 387 F.3d at 1224-25 (citing dictionary usages). And far from being a purely modern usage, the Constitution itself elsewhere uses “the” in precisely this manner. For example, the Adjournment Clause requires both the House and Senate to consent before adjourning for more than three days “during the Session of Congress.” Art. I, § 5, cl. 4 (emphasis added). Because there are always two or more enumerated sessions in any Congress, the reference to “the Session” cannot be limited to a single one. Similarly, the Constitution directs the Senate to choose a temporary President “in the Absence of the Vice President,” Art. I, § 3, cl. 5 (emphasis added), a directive that applies to all Vice Presidential absences rather than one in particular.

The Justice Department also argues that the past practice of recess appointments lends credence to the administration’s interpretation:

The longstanding historical practice of the Executive Branch, in which the Legislative Branch has acquiesced, further reinforces the understanding that the Recess Appointments Clause permits intrasession recess appointments. “[T]raditional ways of conducting government give meaning to the Constitution,” and “[l]ong settled and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” Mistretta v. United States, 488 U.S. 361, 401 (1989); The Pocket Veto Case, 279 U.S. 655, 689 (1929).

Conspicuously, however, the Justice Department sets forth no argument refuting the claim made by the employer in Noel Canning that the Senate was not in recess when Members Block, Griffin, and Flynn were appointed. The D.C. Circuit’s opinion did not decide whether the Senate, despite holding pro forma sessions, was in a intrasession recess when the NLRB members were appointed. Therefore, the alleged recess appointments could still be held unconstitutional even if the Department of Justice is correct in its assertion that recess appointments can occur during an intrasession recess.

Meanwhile, Laboratory Corp. of America Holdings filed suit in federal court last month against the NLRB claiming that the Board lacked authority to conduct a union election. In January, a union filed a petition with the NLRB seeking to represent LabCorp’s patient service technicians and patient site coordinators in New Jersey. LabCorp moved to dismiss the petition because:

without a quorum of three properly appointed members, the Board lacks the statutory authority to direct or certify an election, as well as the authority to delegate any of those powers to the Regional Director.

The Regional Director denied the motion and issued a Decision and Direction of Election. LabCorp then filed suit seeking to enjoin the election on the following grounds:

15. Because the Board does not currently have sufficient members to constitute a quorum, it cannot legally take any action, including but not limited to ordering, conducting, or certifying the results of any representation election. See 29 U.S.C. § 153(b).

16. Ordinarily, the Board delegates responsibility to make initial determinations on these issues to its Regional Directors, but the source of that authority remains the Board. See 29 U.S.C. § 153(b). During periods when the Board is unable to act, including periods when it lacks the quorum required by law, delegations to Regional Directors are inoperative. See Laurel Baye, 564 F.3d at 473-475. Thus, the Regional Directors lack the authority to order or certify the result of any representation election.

17. Moreover, in connection with directing elections or certifying election results, actions taken by a Regional Director pursuant to a delegation of authority may be appealed to the Board. See 29 U.S.C. § 153(b). And because it lacks a quorum, the Board cannot rule upon any appeal of a Regional Director’s decision.

LabCorp argues that it will suffer irreparable harm if the NLRB proceeds with the election including having to disclose "a sensitive Excelsior list’ of employees’ full names and home addresses to the union," devote "business resources to the election effort as opposed to its core business operations," and suffer a divided work force where "unlike a lawful election order, the divisions engendered by this order have no end date because the Board cannot certify the election results in favor of either party."