Executive Summary: A three-judge panel of the D.C. Circuit Court of Appeals has held that President Obama's recess appointment of three members to the National Labor Relations Board (NLRB) violated the U.S. Constitution. See Noel Canning v. NLRB, No. 12-1115 (January 25, 2013). While the NLRB likely will appeal this decision to the U.S. Supreme Court, if it stands, the decision could mean that hundreds of Board decisions issued over the last year are invalid.
On February 8, 2012, a three-member panel of the Board affirmed an ALJ's finding that the employer violated the National Labor Relations Act (NLRA) by refusing to reduce to writing and execute a collective bargaining agreement with the Teamsters Union. The employer appealed this decision to the D.C. Circuit Court of Appeals, arguing, among other things, that the Board's order was void because it lacked a quorum to act when it issued its decision because three members of the five-member Board were never validly appointed. The court agreed, holding that the President's recess appointments of Members Block, Flynn, and Griffin violated the constitution.
The Recess Appointments Clause gives the President the power to "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The employer argued that the term "recess" in the Recess Appointments Clause means the intersession recess – that is, the period between sessions of the Senate when the Senate is, by definition, not in session and therefore unavailable to receive and act upon nominations by the President. The Board argued that the Recess Appointments Clause gives the President the power to make appointments during intrasession recesses or breaks in the Senate's business when it is otherwise in a continuing session.
The court rejected the Board's argument, holding that "[t]o adopt the Board's proffered intrasession interpretation of "the Recess" would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause." Further, the court found that "the Constitution's appointment structure – the general method of advice and consent modified only by a limited recess appointments power when the Senate simply cannot provide advice and consent – makes clear that the Framers used 'the Recess' to refer only to the recess between sessions." Because the Board conceded at oral argument that the appointments at issue were not made during the intersession recess, the court held that the Board lacked a quorum when it issued the order in this case and that order must be vacated.
The court also held that the Recess Appointments Clause requires that the relevant vacancy arise during the recess. Because these appointments did not happen during the recess, the court held that they are invalid for this additional reason.
Employers' Bottom Line: While the NLRB likely will appeal this decision, if it stands it could have a far-reaching impact, invalidating hundreds of Board decisions issued over the past year. The decision also casts questions on the President's appointment of Richard Cordray to the Consumer Financial Bureau on January 4, 2012, which has been challenged in a separate proceeding.
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