Just one day after the Senate’s filibuster compromise paving the way to a five member National Labor Relations Board, the Fourth Circuit issued a 2-1 decision in NLRB v. Enterprise Leasing Company Southeast, LLC, Case No. 12-1514 (4th Cir. July 17, 2013), holding that the President’s recess appointments to the NLRB are invalid. Agreeing with the D.C. Circuit’s Noel Canning and the Third Circuit’s New Vista Nursing decisions, the Fourth Circuit concluded that:
the term "the Recess," as used in the Recess Appointments Clause, refers to the legislative break that the Senate takes between its "Session[s]." In other words, the term "the Recess" means the intersession period of time between an adjournment sine die and the start of the Senate’s next session.
In so holding, the Fourth Circuit’s decision primarily tracks the analyses in Noel Canning, which is currently before the Supreme Court, and New Vista Nursing, as it found that:
- the use of the definite article suggests some "specificity" regarding the type of recess (while not agreeing with the level of significance placed upon "the" by the D.C. Circuit in Noel Canning);
- the intersession definition is consistent with the Framers’ understanding of the term;
- the historical record supports the intersession definition–between 1789 and 1921, there were no unilateral appointments during an intrasession recess save one possible exception;
- the intrasession and "unavailable-for-business" definitions "prevent the Senate from performing its constitutional advice and consent function" and from establishing its own rules concerning the conduct of its proceedings; and
- "the intrasession definition offers vague and the unavailable-for-business definition offers no durational guideposts."
Arguably, the Fourth Circuit’s decision provides further insight into how the Supreme Court might rule in Noel Canning. However, there is some debate as to whether Noel Canning is now mooted by the Senate’s filibuster compromise reached yesterday. As part of that deal, the Democrats agreed to withdraw the nominations of Sharon Block and Richard Griffin and replace them with Nancy Shiffer, former general counsel of the AFL-CIO, and Kent Hirozawa, Board Chairman Mark Gaston Pearce’s chief counsel. They, along with Chairman Pearce and Republican nominees Philip A. Miscimarra and Harry I. Johnson, III, are expected to be confirmed by next month.
As we noted yesterday, given that a full and proper Board is imminent, employers generally should expect the Board to resume its recent efforts to expand the scope of the NLRA’s protections over the next few years consistent with the invalidated 2012 Board decisions, which are highlighted in our "Labor Law 2012: Year in Review".
In the meantime, we leave you with Senior Judge Hamilton’s closing observation regarding the recess appointments in Enterprise Leasing, as it also applies with equal force to the filibuster developments of the past few weeks:
Unfortunately, in modern times, the question concerning the scope of the President’s recess appointment power under the Recess Appointments Clause has become a political debate regarding the qualifications of the President’s nominations, rather than a genuine, meaningful debate regarding the true meaning of the clause. Today, it is the Executive Branch, with a Democratic president in office, seeking to exercise expansive recess appointment power. Republicans are crying foul. … In the case of Judge Pryor’s [recess appointment to the Eleventh Circuit], it was a Republican president, President Bush, in office, seeking to exercise expansive recess appointment power, with the Democrats crying foul. … Who knows what tomorrow will bring?