Hunton Employment & Labor Perspectives

The U.S. Supreme Court yesterday granted certiorari in two high profile labor cases, setting up what promises to be a compelling October 2013 term for labor practitioners.

NLRB v. Noel Canning: In a highly anticipated move, the Court granted the National Labor Relations Board’s request to review the U.S. Court of Appeals for the District of Columbia Circuit’s decision that President Obama’s January 2012 recess appointments to the Board were unconstitutional.  In January, the D.C. Circuit held the president may only make recess appointments during the intersession break between annual Senate sessions and that recess appointments may only be made to fill vacancies that happen during such breaks.  Since that decision, the Third Circuit also has ruled that the president may not make a recess appointment during intra-session Senate adjournments, but may only do so during intersession recesses.  The Supreme Court granted the Board’s request to review both prongs of the D.C. Circuit’s ruling.  It also requested that the parties brief the question of whether the president may make a recess appointment when the Senate is convening every three days in pro forma sessions.  President Obama’s January 2012 Board appointments were made the day after the Senate convened a pro forma session and then adjourned for three days.  Challenges to the President’s recess appointments have also been fully briefed and argued by Hunton & Williams lawyers in the Fourth and Seventh Circuits.  Regardless, the Supreme Court’s grant of certiorari in Noel Canning sets up a compelling separation of powers showdown between the Executive and the Senate regarding the scope of the Recess Appointment Clause.

UNITE HERE Local 355 v. Mulhall:  The Supreme Court also agreed yesterday to consider whether a Florida employer’s agreement to remain neutral and provide organizing assistance to a local union during its drive to unionize the employer’s employees violated Section 302 of the Labor Management Relations Act.  Section 302 criminalizes the provision to a union of any “thing of value” intended either to bribe the union or which was extracted through threats or extortion.  The Eleventh Circuit had ruled last year that “neutrality agreements,” as they are often called, may indeed constitute “thing[s] of value” under Section 302.  The Court noted in particular that the Union agreed to lobby on the employer’s behalf for a state gaming initiative in return for the employer’s neutrality pledge.   The Mulhall decision set up a Circuit split, as the Third and Fourth Circuits have ruled in the past that neutrality organizing agreements are not “thing[s] of value” under Section 302.  We have followed this issue very closely and Hunton & Williams lawyers have commented on the implications of the Mullhall decision in the labor context.