Human Resource & Labor News
www.agc.orgMay 29, 2013 / Issue No. 3-13
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On the Inside
Another Appeals Court Invalidates Recess Appointment to NLRB
Court Agrees with CDW, Strikes Down NLRB Posting Rule
NLRB's Advice Memo Provides Some Clarity on Acceptable Confidentiality Provisions
Health Care Reform
Labor Department Provides Model Exchange and COBRA Election Notices Required by Affordable Care Act
Affordable Care Act Resources Available to AGC Members
Government Contracting
Wage & Hour Division Issues Davis-Bacon Guidance on Survey Crew Members and Conformance Request Process
Interim Final Rule Issued on Prevailing Wages for H-2B Program
Independent Contractors
AGC Opposes Proposed Survey of Workers on Independent Contractor Issues
Union Contractors to Hold Next Conference Call on June 19
NLRB Controversies and Other Hot Topics Covered at AGC’s 29th Annual Construction Labor Law Symposium
Another Appeals Court Invalidates Recess Appointment to NLRB

The employer community has won another significant victory in litigation challenging the authority of the National Labor Relations Board (NLRB). On May 16, the U.S. Court of Appeals for the Third Circuit invalidated President Obama’s March 2010 recess of Craig Becker to the NLRB. The court agreed with the DC Circuit’s finding in the Noel Canning case that the President’s authority to make recess appointments is reserved for intersession breaks of the Senate, not intrasession breaks. Becker’s appointment took place during an intrasession break.

The case, NLRB v. New Vista Nursing and Rehabilitation, involves an August 2012 order by the NLRB finding that employer New Vista committed an unfair labor practice when it refused to bargain with a newly certified union of nurses. Although the NLRB has five members when fully comprised, it may – and typically does – delegate authority to issue decisions to panels of three members. In this case, the order was issued by a three-member panel that included Becker. New Vista argued that the order was invalid because Becker’s appointment was invalid. The Third Circuit agreed.

The primary issue in the case was the interpretation of the Recess Appointments Clause of the U.S. Constitution. The clause provides that “[t]he 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.” In a lengthy, painstaking opinion, the court explored the text, context, and historical application of this and other clauses of the Constitution. It concluded that “the Recess of the Senate” refers to only intersession breaks – i.e., breaks between Senate sessions. Since Becker was appointed during an intrasession break – i.e., a break that occurred within a Senate session – the appointment was invalid. Accordingly, the panel issuing the order against New Vista lacked the requisite number of members to exercise the NRLB’s authority and was vacated by the court.

While consistent with the DC Circuit’s Noel Canning decision, the Third Circuit’s holding on the intersession requirement is inconsistent with a 2004 decision by the Eleventh Circuit. The growing split in the circuits on this important question increases the likelihood that the Supreme Court will rule on the issue. As reported earlier, the government has petitioned the Court to review the Noel Canning decision.

Worth noting is that the Third Circuit in New Vista expressly opted not to rule on the meaning of the word “happen” in the Recess Appointments Clause. The DC Circuit in Noel Canning interpreted the term to restrict the President’s recess appointment authority to fill only vacancies that arise during an intersession recess. That is, the appointment must take place during the same intersession recess in which the vacancy arose. A split among several circuits also exists on this issue.

New Vista (and Noel Canning) calls into question the validity of all NLRB decisions in which Becker participated during his service on the Board between March 2010 and January 2012. This includes several significant decisions as well as the “quickie election” rule (which is already on hold as the result of separate litigation). Moreover, it calls into question every decision of the NLRB from the time Chairman Wilma Leibman resigned from the Board in August 2011 through the present. That is because, since then, the Board has continuously relied on recess appointments made during intrasession recesses to establish the three-member quorum required to exercise its powers. Presently, the Board is conducting business as usual, even though it has only one confirmed member (Chairman Mark Pearce) and two members (Sharon Block and Richard Griffin) whose recess appointments were invalidated in Noel Canning.

The uncertainty of the Board’s authority threatens to become decidedly void if no new appointments are confirmed by August 27. On that date, Pearce’s term expires. President Obama on April 9 nominated two new members (Philip Miscimarra and Harry Johnson, III) and re-nominated Pearce for a new term, but the Senate has yet to confirm them.
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