D.C. Circuit Holds that President Obama's Recess Appointments of the NLRB were Unconstitutional
Decisions of the National Labor Relations Board issued after January 2012 may be invalid. On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Noel Canning v. NLRB, held that President Barack Obama’s recess appointments of three National Labor Relations Board (“Board”) members were unconstitutional and, therefore, the Board lacked the three-member quorum required by the National Labor Relations Act for the Board to act.
In the underlying proceeding, the Board issued a decision finding that the Noel Canning Company had engaged in an unfair labor practice. At the time of that decision, only two of the five Board members were confirmed by the Senate; the other three Board members had been appointed by President Obama on January 4, 2012, during a time (from December 20, 2011, until January 23, 2012) when the Senate had agreed to meet in pro forma sessions every three business days. The President viewed that time as a “recess” and appointed the three Board members without Senate confirmation under the Recess Appointment Clause of the U.S. Constitution.
On appeal to the D.C. Circuit, the petitioner argued that the Board’s decision was unconstitutional because the appointments of the three Board members were not valid recess appointments and, thus, the Board had acted without a quorum and lacked the power to issue its decision.
The D.C. Circuit agreed. It held that the appointments of the three Board members were unconstitutional and that the Board did not have the power to act when it issued its order. The D.C. Circuit further held that when the President made the three appointments, the Senate was not in “recess” but was merely adjourned. Interpreting the term “recess” as the time between official sessions of the Senate, the D.C. Circuit determined that the Senate was not in “recess” at the time of the appointments. Accordingly, the President was unable to appoint the Board members without the consent of the Senate. The D.C. Circuit also found that the appointments were improper because the three vacancies did not “happen” during a recess, but, instead, happened before the Senate adjourned. Because the appointments were constitutionally invalid, the D.C. Circuit vacated the order issued by the Board.
This ruling not only impacts the Noel Canning Company but every one of the Board’s decisions issued since January 4, 2012. This is particularly notable because the Board had issued several decisions in the last year extending labor-friendly positions to areas such as social media, employment-at-will policies, and the confidentiality of investigations, as well as overturning some long-standing, employer-friendly decisions of prior Boards. Additionally, pursuant to the decision of the D.C. Circuit, the Board would be unable to take any future action until new members are validly appointed by President Obama and confirmed by the Senate.
This decision is not the end of the dispute. It is likely that the current administration will appeal the D.C. Circuit’s decision to the Supreme Court. Until there has been a final resolution of this issue, employers should treat any decisions of the Board as valid.
Case No. 12-1115 (D.C. Cir. Jan. 25, 2012).
 That Clause reads: “[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.” U.S. Const. art. II, § 2, cl. 3.
The three vacancies occurred on August 27, 2010, August 27, 2011, and January 3, 2012.