Not So Fast, My Friend! Eleventh Circuit Weighs In On NLRB Recess Appointment Issue

As we previously reported, the United States Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) struck down President Barack Obama's "recess appointments" of three members of the National Labor Relations Board ("Board") as unconstitutional, placing into question the legitimacy of numerous (mostly pro-union/employee) decisions issued during 2012. On November 15, the United States Court of Appeals for the Eleventh Circuit, in an unpublished opinion, came to a contrary decision, rejecting an employer's challenge to the Board's authority to act with respect to its order finding that the employer had committed various unfair labor practices. Ambassador Services, Inc. v. NLRB, Case No. 12-15124 (11th Cir. Nov. 15, 2013).

Ambassador Services, Inc. ("Ambassador") is a Florida corporation with an office in Cape Canaveral, Florida, engaged in providing stevedoring services at Port Canaveral, Florida. An administrative law judge ("ALJ") with the Board found that Ambassador violated the National Labor Relations Act ("NLRA") by maintaining an unlawfully broad rule prohibiting unauthorized solicitation and/or distribution of literature, informing employees that it had assisted with a petition to decertify the International Longshoremen's Association ("Union") as its employees' collective-bargaining representative, soliciting employees to sign a petition to decertify the Union, and informing employees that they could not solicit or distribute literature on the property at which they were working. The ALJ also found that Ambassador had committed an unfair labor practice by failing and refusing to recognize and bargain with the Union. Subsequently, in a 2012 Decision and Order, the Board affirmed the ALJ's findings described above; however, it further found that Ambassador had violated the NLRA by unlawfully interrogating employees about their union sympathies and by maintaining a work rule prohibiting "walking off the job and/or leaving the premises during working hours without permission."

On appeal to the Eleventh Circuit, Ambassador asserted that the Board lacked a quorum to issue its order because at the time it was issued, three of its five members were intrasession recess appointments made without the U.S. Senate's consent. The appellate court rejected Ambassador's argument based upon its prior decision in Evans v...