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Supreme Court Checks Executive Recess Power, NLRB and Anchorage Hotel Workers Caught in Crossfire



The U.S. Supreme Court issued a ruling Thursday that sought to clarify executive powers of recess appointment. The ruling had a collateral impact on an ongoing Anchorage labor dispute.

At issue in the case, Noel Canning v National Labor Relations Board (NLRB), was whether the President is able to make appointments when the Senate has not declared itself in recess, thus bypassing the confirmation process. In a unanimous decision authored by Justice Stephen Breyer, the Court determined that the D.C. Circuit limits on recess appointments were too broad, but agreed that Barack Obama’s three appointments to the NLRB during a three-day Senate adjournment were invalid.

Breyer was mindful that a narrow reading of the Constitution could paralyze the government with an abundance of vacancies. However, he wrote,

The Adjournments Clause, Art. I, §5, cl. 4, reflects the fact that a 3-day break is not a significant interruption of legislative business. A Senate recess that is so short that it does not require the consent of the House under that Clause is not long enough to trigger the President’s recess-appointment power…. In light of historical practice, a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause.

Breyer made a point of trying to maintain the balance between the executive and judicial branches for the continued functioning of the government. Since the Court had not previously delved into the Adjournments Clause of the Constitution, the Court relied heavily on history for its opinion.

In a concurring opinion, Justice Antonin Scalia, joined by Chief Justice John Roberts, Justice Clarence Thomas, and Justice Samuel Alito, agreed with the D.C. Circuit’s judgment, as well as its method. Scalia, in an unusual move, read from his concurrence to voice where he broke from the majority.

The Court effectively vacated hundreds of decisions made by the NLRB over a period of two years. The NLRB is responsible for enforcing the National Labor Relations Act (NLRA), also known as the Wagner Act. This includes holding union representation elections and resolving labor disputes.

The duties of the NLRB are anathema to anti-union legislators, primarily Republicans. Hence, Republicans have pursued a de facto elimination of the NLRB by failing to appoint members to the Board or confirm those who have been appointed.


What Were the Appointments in Question?

George W. Bush refused to appoint members to the Board in the last years of his presidency, leaving the Board in December 2007 with only two members for five seats. Those two members continued to make “noncontroversial decisions,” but these were all invalidated by the Supreme Court in New Process Steel, L.P. v NLRB.

NLRB Building, Washington DC. Photo by Tim Evanson, Creative Commons License.

The Court’s 2010 conclusion that the NLRB needed a quorum of three members to conduct business fueled Republican tactics of obstruction during Barack Obama’s first term. Obama’s nominees to the Board who held union backgrounds were consistently blocked on the Senate floor by Republicans refusing to allow an end to debate. Frustrated with an inability to fill the Board, Obama made an intrasession recess appointment of Craig Becker, an attorney for the Service Employees International Union (SEIU), in 2011, after his confirmation was blocked in the Senate.

Obama made three additional recess appointments in January 2012, the appointments that triggered Noel Canning. An objection was raised because the Senate was not officially in “recess” during the January break, but rather in pro forma session. The Senate Journals from the time in question, attached to a Senate Republican amicus brief, attest to this.

The Democratic Senate majority would gladly have recessed to allow Obama’s appointments, but it could not because House Speaker John Boehner (R-Ohio), by design and in order to prevent appointments, refused to recess the House. The Adjournments Clause of the Constitution prevents either house from adjourning more than three days without the other’s consent, forcing the Senate to gavel in every three days in January 2012 for just a few seconds at a time and with no business to do.

While Republicans and self-described strict constructionists lined up to argue that it was for the Senate to determine when it was and was not in session, the Obama administration defended its appointments, saying, “Our view is that a pro forma session at which the Senate, by its own definition, is not conducting any business and is unavailable to provide advice and consent on the president’s nominees is, for all practical and functional purposes, in recess,” according to National Public Radio (NPR). The ability of the government to continue functioning was the purpose of constitutional recess appointment powers, supporters argued.

Not subject to argument was the inability of the NLRB specifically to function over the preceding four years. Restoring the Board to a quorum was thus praised by organized labor. AFL-CIO President Richard Trumka issued a press release, saying, “We commend the President for exercising his constitutional authority to ensure that crucially important agencies protecting workers and consumers are not shut down by Republican obstructionism.” In particular, the AFL-CIO anticipated the appointment of Robert Griffin, general counsel for the International Union of Operating Engineers.

It should be noted that the AFL-CIO, both in January 2002 and January 2006, criticized Bush for “circumvent[ing] Senate approval” through recess appointments to the NLRB.

Caught between support for a Democratic President and their duties to the Senate, Democrats were also in positions of inconsistency. Democrats argued that the NLRB appointments were valid, but almost unanimously refused to acknowledge that the Senate was in recess in January 2012.


How Did the Question Reach the Court?

With the dispute between the executive and legislative branches over the constitutionality of the NLRB appointments, the Board’s interim decisions were ripe for challenge. Noel Canning Corporation, a PepsiCo bottler based in Yakima, Washington, refused to put a 2010 agreement with the International Brotherhood of Teamsters (IBT) into effect. When three Board members, including two January appointees, Terrence Flynn and Sharon Block, ruled in February 2012 that Noel must honor its agreement, Noel challenged whether the Board had a legitimate quorum.

The D.C. Circuit Court, composed of Bush appointees, heard the case on appeal. In its January 2013 decision, the D.C. Circuit ruled not only that Obama’s NLRB appointments were invalid, but that all intrasession appointments would be invalid. Intersession appointments would only be permissible if the offices in question became vacant during the recess. (Scalia agreed, but the Supreme Court majority found this too broad.) The ruling nullified a year’s worth of Board decisions, which went into limbo pending the Supreme Court’s ruling.

Richard Trumka said the decision was “nothing less than shocking. In a radical and unprecedented decision, the court has interpreted the Constitution in a way that would deprive both Republican and Democratic presidents of a critical tool they have used hundreds of times over the years…to keep agencies functioning and make the government work.”

The Congressional Research Service estimated that presidents made 652 recess appointments between 1981 and February of 2013, almost all of which would have been invalid per Noel Canning. Ronald Reagan made four intrasession appointments to the NLRB, plus two more between Congressional sessions. His successor, George H.W. Bush, made three more intersession appointments to the NLRB. Bill Clinton’s Board appointments totaled two intersession and four intrasession, while George W. Bush made the most recess appointments to the NLRB since 1981 with seven. In fact, George W. Bush’s first recess appointment of his presidency was to designate a Republican NLRB member the new chair.

In its Thursday decision, the Supreme Court said that Obama’s appointments during an intrasession recess of fewer than ten days were unprecedented.

Protecting recess appointments forced the Obama administration to request Noel Canning be heard by the Court. The D.C. Circuit’s decision established a precedent, precipitating dozens of other legal challenges to the NLRB. Any of those cases could be appealed to the D.C. Circuit, guaranteeing the Board’s decision would be vacated. Precedent has also been set in the Third Circuit, where the decision in NLRB v New Vista Nursing and Rehabilitation invalidated the 2011 recess appointment of Craig Becker and vacated decisions from August 2011 until Noel Canning.


An Example of the Board’s Work in Alaska

While Noel Canning worked its way up to the Supreme Court, the NLRB, including its two questioned members Griffin and Block (Flynn had resigned), continued to issue decisions. It is at this time that the highly involved history of the NLRB tug-of-war met the equally convoluted labor dispute between the downtown Sheraton Hotel in Anchorage and UNITE HERE! Local 878.

In December of 2006, Remington Lodging and Hospitality took over management of the Sheraton. The company also

Photo by Craig Tuten

inherited a contract scheduled to expire in 2009 that had been negotiated by the previous managers with hotel workers, represented by Local 878.

When Remington and Local 878 sought to negotiate a new agreement prior to the expiration of the old, the situation devolved to the point that Local 878 filed a petition with the NLRB accusing Remington of numerous unfair labor practices. According to Administrative Law Judge Gregory Meyerson, who heard the case between August 2010 and January 2011, negotiations were so contentious that the parties did not even agree when they began.

In his decision, Meyerson documented the poor communication between the two sides. Each bargained in ways foreign to the other. Remington was frustrated by Local 878’s demand that negotiations take place face to face in Anchorage, while Remington’s chief negotiator, Arch Stokes, was prone to such levels of digression at the table that Local 878 accused Remington of “surface bargaining,” or killing time so the existing agreement would expire while avoiding NLRB charges of bargaining in bad faith.

Meyerson disagreed with the union’s contention that Remington was surface bargaining, but acknowledged, “At times Stokes raises subjects that seem only distantly related to the matters at hand… As an example, early on in these negotiations, Stokes spoke at length about Mayan culture… Certainly Stokes’ manner could be frustrating for the union negotiators who wanted to keep the discussion on track.”

Remington expected concessions from the union, suggesting that the recession demanded some economic belt tightening from the hospitality industry. The company’s first proposal included a reduction in the number of holidays, elimination of sick pay for part-time workers, and an increase in the number of rooms housekeepers were to clean from 15 to 18 (later reduced to 17). Stoking 878’s fears that Remington was building an anti-union environment, the proposal also would have reduced the number of union shop stewards on shift, curtailed the amount of time stewards had to file a grievance, and required stewards to acquire management’s permission prior to accessing the hotel.

Negotiations continued with little progress into the summer of 2009, requiring the existing contract be extended multiple times. In August 2009, Remington submitted what it called its “final proposal,” including what Meyerson determined was a wage freeze.

Things deteriorated quickly from that point. Remington subcontracted driving of the hotel van to Valentino Service, a limousine car service, depriving bellmen of a significant source of tip income. In September 2009, Remington laid off all of its security guards and gave their security duties to the hotel engineers, but failed to train the engineers in security work.

Then, in October, after the most recent contract extension had expired, Stokes sent a letter to UNITE HERE! declaring an impasse and the company’s intention to unilaterally impose its final proposal. Remington held meetings with Sheraton workers explaining the immediate implementation of the new 17-room standard, among other changes. Remington also moved to switch workers from the existing union medical plan to a private plan.

Sheraton workers voted to authorize a boycott in November 2009, after more than a year of unsuccessful negotiation. During a rally, nine off-duty workers entered the hotel lobby and presented manager Dennis Artiles with notice of the boycott. They were later disciplined, despite being off the clock and allowing hotel guests to enter and exit without impediment. Four of the nine were then terminated in February 2010 for distributing flyers about the boycott outside the hotel. All were union shop stewards.

Remington and the union returned to the bargaining table in March of 2010 and made substantial progress toward a tentative agreement, but Stokes continued to insist they were at an impasse. Management began calling workers into small group meetings to explain the new health plan they were implementing.

Finally, Meyerson found at least two Remington supervisors aided a drive to decertify the union. In July 2010, Artiles sent a letter to Local 878 president Marvin Jones saying that over 50 percent of Sheraton workers had signed a decertification petition. Union representatives were no longer permitted on the property, Artiles wrote, for any purposes related to the representative capacity [the Union] no longer possess.” Artiles could no longer communicate with Jones in his “now-extinguished capacity as a representative of the employees.” Remington immediately stopped payroll deduction of union dues.


How Did the NLRB Rule?

Meyerson found numerous unfair labor practices in Remington’s actions. He ordered that all employees disciplined for leafletting and presenting Artiles with the boycott petition be “made whole,” or returned to their prior conditions of employment including back pay, as these are concerted activities protected by the National Labor Relations Act. The Remington employee rules, cited in each incidence of discipline, were written to chill this concerted activity, and were therefore unlawful. He further ordered all affected employees be made whole from the unilateral changes Remington made during its faux impasse and that those changes be undone.

Richard Trumka speaking in Anchorage. Photo by Craig Tuten.

Meyerson also ordered that Remington continue to recognize the union in light of its supervisors’ coercion in the decertification process. “When added to that coercive conduct is [sic] the Respondent’s cumulative actions in committing unremedied unfair labor practices both at the bargaining table and away from it, but while negotiations were still in progress, there can be little doubt that the petition did not represent a true and unencumbered measurement of the employees’ feelings about the Union,” Meyerson wrote.

The three members of the NLRB seated at that time, including Griffin and Block, agreed with Meyerson. In a ruling issued April 2013, following the D.C. Circuit’s ruling in Noel Canning, the NLRB reinforced and expounded upon Meyerson’s order. They found that a room cleaning incentive plan, introduced by Remington but never fully realized, constituted yet another violation of the NLRA and was not de minimis, or of insignificant impact, as Meyerson had ruled.

The case and the NLRB ruling drew national attention. Richard Trumka, in conjunction with the biennial Alaska AFL-CIO Convention, traveled to Anchorage in 2010 and 2012, mentioning the Sheraton workers in speeches both times. Of the AFL-CIO’s “10 Reasons Why the National Labor Relations Board Matters,” the Anchorage Sheraton was number one. Pickets of the Sheraton and the downtown Hilton, which is also under an ongoing boycott, have been frequent.

Meanwhile, fully aware of Noel Canning, Remington eventually appealed the NLRB’s ruling to the D.C. Circuit. The NLRB, however, petitioned to move the case to the Ninth Circuit, where there was no precedent. Remington failed to properly file its petition to the D.C. Circuit, losing its opportunity to win by default. The case was sent to the Ninth Circuit, awaiting a decision from the Supreme Court.

Remington was also found guilty in April 2014 of dozens of unfair labor practices by the Alaska Circuit. That case, known as Remington II, was appealed after another NLRB ruling. The decision, however, was by a fully confirmed, five-member Board and is not in dispute.


How Was the NLRB Finally Filled?

In 2013, Obama renominated Block and Griffin, whose terms were limited by their recess appointments, to full Board terms, as well as Chairman Mark Pearce. On May 16, 2013, the Senate Health, Education, Labor, and Pensions (HELP) Committee held a confirmation hearing for these three, plus two Republican nominees to the Board.

I was in attendance at that hearing and can attest to the tense climate in Washington that week. The press had just discovered the Justice Department’s secret seizure of Associated Press phone records, an action that, coupled with the subsequent search warrant of Fox News reporter James Rosen, drew comparisons to the Nixon White House. The hot button issue of immigration reform was being debated on the Hill that week, pulling many members from the HELP hearing to the Judiciary Committee.

Republicans were threatening to prevent a confirmation vote on Block and Griffin in the wake of Noel Canning. Sen. Mark

Sen. Begich said Democrats would use the
Sen. Begich said Democrats would change filibuster rules.

Begich (D-Alaska) revealed to me that Democrats were going to institute changes to the filibuster rules should Republicans honor their threat. This “nuclear option” would mean that only 51 votes would be required to end Senate floor debate, rather than 60.

At the hearing, Noel Canning and the difficulties of confirming nominees were at the forefront of senators’ minds. There were few questions asked of the nominees, with most of the time spent by members stating their ideological positions.

In his opening remarks, Chairman Tom Harkin (D-Iowa) described the importance of the NLRB and quoted an unnamed senator as saying an “the NLRB as inoperable could be considered as progress.” (That senator was Republican Lindsay Graham of South Carolina.)

But ranking member Sen. Lamar Alexander (R-Tennessee) used his opening remarks to argue that the Senate must be the only entity to decide when it is in session, even suggesting that recess appointments were an outdated portion of the Constitution that did not anticipate modern technology. Alexander said that the qualifications of Block and Griffin were not questioned, but that he had a problem with them continuing to decide cases following Noel Canning. “Not only has the President shown a lack of respect for the constitutional role of separation of powers and the curb on the executive branch that Article I provides, but I believe these two individuals have, as well,” he said.

In response to Harkin’s opening question about the Board’s continuing operation following Noel Canning, Pearce said the NLRB has always existed in a climate of constitutional challenge. Board members “owe it to the public” to keep working, he said.

Griffin said that he had taken an oath to serve and felt he needed to honor it until the Supreme Court ruled. Block expressed similar sentiment. She added that workers and businesses had continued to bring issues to the Board during the period, despite the ongoing litigation.

Pearce brought up Noel Canning himself in testimony, noting that the D.C. Circuit had agreed with the Board’s decision, namely that Noel Canning had unfairly failed to implement a bargained agreement. The only question was the legitimacy of the Board’s quorum.

During his allotted five minutes, Sen. Bernie Sanders (I-Vermont) anticipated that the nominees would emerge from committee to face a Republican filibuster on the Senate floor. Sanders said he was of the opinion that filibuster rules should be changed, as Begich had told me was being discussed, to make sure the NLRB could continue to function.

Alexander responded by defending Republicans and said the nature of the Senate was deliberative. If majority rule were the way of the Senate, Alexander said, then the Tea Party Express would be in control one minute only to be replaced by “some liberal group” the next. Sanders and Alexander then got into a brief exchange that, while controlled, was atypical given Senate protocol.

Sen. Elizabeth Warren (D-Massachusetts) said that Republicans were using procedural technicalities to block nominees based solely on a “fundamental hostility to the Board.” She said that she was concerned that the U.S. Chamber of Commerce hired one nominee (Phil Miscimarra) to curb the Board’s regulatory authority, but acknowledged that all were qualified and deserved a confirmation vote.

Al Franken (D-Minnesota) specifically mentioned Noel Canning as preventing the protection of workers’ rights. Block and Griffin said that a confirmed Board would allow the Board straight up or down decisions from the courts and provide clarity for workers.

Harkin closed by saying he had spent over 20 years in the Senate trying to get rid of the filibuster. “It should be the right of the minority to be able to amend, to offer amendments, yes, to slow things down to get the public aware of what the majority’s trying to do, but not to, in the end, be able to absolutely stop something with a minority of the vote.”

The HELP Committee did vote to advance all five nominees. Sen. Lisa Murkowski (R-Alaska) was the only Republican committee member to vote for Block and Griffin.

However, Obama and the Senate came to an agreement to replace Block and Griffin with two other nominees to prevent the nuclear option and keep the peace in the Senate. (The nuclear option was later implemented anyway, unrelated to the NLRB.) Thus, the Board had a full five members for the first time in a decade. This is the Board that ruled on Remington II.


What Now?

The Supreme Court has affirmed John Boehner’s tactic of holding the House open to prevent Senate recess and recess appointment. A recess of at least ten days will now be necessary for a president to make an unchallenged recess appointment. If the opposition party controls either house, a recess of that length would be unlikely if the opposition does not approve of the appointee. While the President retains the authority to appoint during shorter recesses for unusual circumstances, Breyer writes that political opposition would not qualify.

The Ninth Circuit will now have no choice but to vacate Remington I under the Supreme Court’s precedent. The Board will need to readdress the case. Although the Board had a quorum for Remington II, the original complaint was brought by NLRB General Counsel when it had none. That decision, too, may be appealed.

The long saga of the Anchorage Sheraton, intertwined with Washington intransigence, has been extended. Whether one believes Thursday’s decision is a break from precedent that will hamstring the country in the face of a do-nothing Congress or a necessary check on expanding executive powers, there are clear victims here: the workers and businesses left in limbo while the NLRB re-decides their cases. Based on the Board’s current makeup, it is not a foregone conclusion that the new decisions will mirror those pre-Noel Canning.