The U.S. Supreme Court yesterday agreed to review the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, which held that President Obama’s January 2012 recess appointments of three members to the National Labor Relations Board (NLRB) violated the United States Constitution. Given the issues the Court will consider, if it agrees that those recess appointments were unconstitutional, its ultimate ruling could affect only the Board’s most recent actions, or potentially invalidate many prior recess appointments and the actions of the Board taken while those earlier members were seated. Either way, the impact of such a ruling on the NLRB's operations cannot be overstated.

The President made the NLRB recess appointments at issue on January 4, 2012, the day after a new session of Congress had begun and while the Senate was conducting a series of “pro forma” sessions. The D.C. Circuit held that the NLRB appointments violated the U.S. Constitution’s Recess Appointments Clause (RAC) because the RAC only allows the President to make recess appointments during an intersession recess of the Senate, and such appointments can be used to fill only vacancies that first arose during the recess in which the appointments were made.  

In its petition for certiorari, the NLRB asked the Court to review only the two grounds on which the D.C. Circuit based its decision. Noel Canning did not oppose the petition, but it asked the Court to consider a third question not addressed below: whether the President's recess appointment authority can be exercised when the Senate is convening every three days in pro forma sessions. The Court agreed to hear this third question.

Given the Court’s 2010 decision in New Process Steel, L.P. v. NLRB (holding that the Board could act only through a quorum of three members), a Supreme Court opinion upholding Noel Canning would invalidate all of the NLRB decisions in which the recess-appointed members participated because unconstitutionally appointed members could not count towards a quorum. It also could potentially invalidate decisions made by prior recess-appointed members (as the Third Circuit recently held in NLRB v. New Vista Nursing and Rehabilitation), again because unconstitutionally appointed members could not count towards a quorum. Additionally, a Supreme Court endorsement of the D.C. Circuit's reasoning could jeopardize other actions taken by this Board (and prior Boards on which recess appointed members sat), such as the naming of Regional Directors to head the Board's regional offices and, by extension, the actions of those appointees.

But the Court could invalidate the 2012 recess appointments without accepting the full measure of the D.C. Circuit's reasoning. Given that it has agreed to consider the third question posed by Noel Canning, the high court could invalidate only the appointments at issue, on the grounds that the Senate was not in a recess (intrasession or otherwise) at the time the President made the appointments because it was holding pro forma sessions every few days. 

Even this more limited rationale, as noted above, would have a significant impact on labor law, invalidating almost all of the Board's decisions made since the appointments and, potentially, many of its administrative actions as well. NLRB decisions that would be invalidated under this scenario include the Board’s most recent controversial rulings on social media, the termination of union dues deductions after contract expiration, confidentiality in workplace investigations, and employee handbook disclaimers.

Ballard Spahr’s Labor and Employment Group routinely assists employers in NLRB compliance. If you have questions or concerns about the recess appointments or NLRB issues, please contact Denise M. Keyser at 856.761.3442 or or the member of the Group with whom you work.

Copyright © 2013 by Ballard Spahr LLP.
(No claim to original U.S. government material.)


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