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Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules

Date: 1.25.2013

National Labor Relations Board Members Sharon Block, Richard Griffin, and former Member Terence F. Flynn were not properly named to the Board as interim appointees by President Barack Obama at the beginning of 2012, the U.S. Court of Appeals for the District of Columbia Circuit has ruled. Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013). The three-judge panel said President Obama did not have the power to make the three recess appointments to the Board because the Senate was officially still in session at the time and therefore they were not made during “the recess” that takes place between sessions, as required by the Constitution. This decision casts into doubt the validity of many recent Board decisions and other actions in which the appointees participated. Following this decision, Board Chairman Mark Gaston Pearce is currently the only validly nominated and confirmed member, which means the Board appears to lack the three-member quorum required by statute to do business. Responding to the Court’s decision, Chairman Pearce released the following statement: “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.”

The U.S. Constitution provides that, to fill agency posts, presidents send nominees’ names to the Senate for its “advice and consent” to such nominations. The Constitution also provides that “[t]he President shall have 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.” 

In the case at hand, the Board had ordered soft-drink bottler and distributor Noel Canning to enter into a collective bargaining agreement with a labor union. At the time, the Board had two sitting (confirmed) members and the three purported recess appointees. Noel Canning appealed the ruling to the D.C. Circuit Court and raised for the first time the question of the constitutionality of the three recess appointments. It contended that the Senate was not in recess at the time President Obama named the three interim Members to the Board on January 4, 2012, and therefore, he did not have authority to make such appointments. 

The Circuit Court unanimously ruled that the constitutional authority to fill vacancies in government posts can be used only after one session of the Senate has ended and before a new session begins. (The Eleventh Circuit Court of Appeals found to the contrary in Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005).) As that was not the case on January 4, 2012, it concluded the three recess appointments are invalid. The Senate had never recessed sine die, a hallmark of a session’s end.

In addition, the Court, by two judges of the three-member panel, decided that the constitutional authority to fill vacancies applies only to vacancies that “happen” or open up during a recess. Here, the Court found the vacancies which the three purported recess appointments were to fill did not open up during a Senate intersession recess. Accordingly, the appointments failed on that score, too. (The third judge said it was unnecessary to reach this constitutional issue in view of the Court’s ruling on the recess issue.)

The lower courts are split on both issues and the U.S. Supreme Court is likely to be called on to settle the controversy. In the meantime, however, the D.C. Circuit's ruling may prove troublesome for the Board, especially because the National Labor Relations Act allows parties aggrieved by a final order of the NLRB to seek review in the D.C. Circuit, in addition to other courts of appeals as may be appropriate under the Act.

This decision also throws into question President Obama’s other recess appointment made at the same time — that of Richard Cordray as head of the Consumer Financial Protection Bureau. Mr. Cordray’s appointment is being challenged in a separate case.

We will continue to keep you apprised of developments in the ongoing controversy about the legality of President Obama’s recess appointments to the NLRB. Please feel free to contact Philip B. Rosen, at (212) 545-4000 or RosenP@jacksonlewis.com, Howard M. Bloom, at (617) 367-0025 or BloomH@jacksonlewis.com, Harold R. Weinrich, at (703) 483-8300 or WeinrichH@jacksonlewis.com, or the Jackson Lewis attorney with whom you regularly work if you have any questions. 


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