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U.S. Supreme Court Strikes Down President's NLRB Recess Appointments

Volume 13, Issue 10
June 26, 2014

Earlier today, the United States Supreme Court issued its much anticipated decision in NLRB v. Noel Canning, holding that President Obama lacked the legal authority to appointment three individuals to the National Labor Relations Board (NLRB) in January 2012.

The United States Constitution provides that the President may only appoint officers with the advice and consent of the Senate. However, under the Recess Appointments Clause of the Constitution, the President can make appointments without Senate approval "to fill up all Vacancies that may happen during the Recess of the Senate." U.S. Constitution, Art. II, § 2, cl. 3. In January 2012, the Senate was holding a series of "pro forma sessions" during which no legislative business was transacted on Tuesdays and Fridays. President Obama appointed three individuals as Members of the NLRB to fill vacancies during a three day gap between the Senate's pro forma sessions.

An employer, Noel Canning, challenged the validity of President Obama's recess appointments in an appeal of a NLRB decision finding that it violated the National Labor Relations Act by failing to reduce to writing a successor labor agreement with a local of the Teamsters Union. Noel Canning argued that the NLRB lacked authority to issue the decision as it did not have a proper quorum of Members given the invalidity of President Obama's three most recent NLRB recess appointments. The D.C. Circuit Court agreed and ruled that the three recess appointments were an unconstitutional use of the Recess Appointments Clause.

Upon review, the Supreme Court found that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess of the Senate, provided that the recess is of sufficient length. It determined that the three-day Senate recess in 2012 was too short of a time to trigger the President's recess-appointment power. Rather, the Court concluded that, in light of historical practice, recesses of more than three days, but less than ten days, are presumptively too short to fall within the scope of the Recess Appointments Clause. The Court also noted that such a presumption leaves open the possibility that in some very unusual circumstances, such as a national catastrophe rendering the Senate unavailable, the exercise of recess-appointment power during a shorter break could be permissible.

It is too early to tell how the Supreme Court's decision will impact the hundreds of decisions issued by NLRB since the unconstitutional recess appointments were made. However, the NLRB faced a similar situation in 2010, when employers across the country challenged its ability to issue decisions with a panel of only two Members instead of three. After the Supreme Court resolved that issue with its decision in New Process Steel v. NLRB, the NLRB had to reconsider the approximately 600 decisions it issued without a proper quorum. Nevertheless, the reconsideration process was of little consequence for employers. The properly-constituted NLRB simply "rubber-stamped" and reissued the decisions, then, in many cases, moved to enforce those decisions against employers in NLRB-friendly circuit courts. In the current situation, it is possible that the NLRB may not be able to simply "rubber stamp" the decisions it issued during the tenure of the unconstitutionally appointed Members given the presence of two new Republican NLRB Members and four new NLRB Members overall.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.