Today, the U.S. Court of Appeals for the Fourth Circuit signed on to the decisions issued by U.S. Court of Appeals for the D.C. Circuit, as well as the Third Circuit and found that President Obama’s recess appointments of Sharon Block and Richard Griffin to the National Labor Relations Board (NLRB) violated the U.S. Constitution. The court held that “the recess” means only the intersession recess and wrote:
[W]e agree with the Noel Canning and New Vista Nursing courts 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.
While the decision was by a divided court (two to one), the majority laid to rest point by point the arguments raised by their dissenting colleague.
Of particular interest is what the court said about the Board’s decision in Specialty Healthcare or micro-union decision, which we want to bring to your attention.
The case was a consolidated one. It involved two employers each of whom asked the court to deny a Board order finding them guilty of an unfair labor practice each for a different reason because it was wrong under the statute and who also made the constitutional argument, that even if the Board was correct, it was without authority to issue an order against them because it did not have a lawful quorum of three members to do so.
One of the two cases involved the size and scope of a collective bargaining unit and the Board’s decision in Specialty Healthcare. The NLRB had found a unit of less than all of the employer’s technicians was appropriate under: one, the traditional community of interest test (under the latter Board’s test has been if the unit sought is less than all of an employer’s technicians, the union has to show that the unit employees share a community of interest that is separate and distinct from all the other excluded technicians) and, two, the Specialty Healthcare standard. The court affirmed the Board’s finding on the traditional community of interest standard (but then denied enforcement based on the constitutional issue). It did not rule on the Specialty Healthcare standard, but in a footnote suggested that it may run afoul of the statute that prohibits a union’s extent of organizing controlling. The court said:
“There is obvious tension between the TRW Carr standard [the traditional standard referred to above] and the community of interest standard clarified in Specialty Healthcare. The TRW Carr standard places the burden on the union, while the community of interest standard clarified in Specialty Healthcare places the burden on the employer. Moreover, the overwhelming community of interest component of the community of interest standard may run afoul of our decision in Lundy Packing. See 68 F.3d at 1581 (“By presuming the union-proposed unit proper unless there is an overwhelming community of interest with excluded employees, the Board effectively accorded controlling weight to the extent of union organization. This is because “the union will propose the unit it has organized.”) (citation and internal quotation marks omitted). These are tensions, however, which we need not resolve here.”
Questioning the underpinnings of the Specialty Healthcare decision… Finding the “recess” appointments to be unconstitutional… The Board continues to be undermined in court after court.
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