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NLRB Recess Appointments Invalid, D.C. Court Holds

hand with gavel3.jpgIn a decision that could potentially invalidate hundreds of Board decisions, the U.S. Court of Appeals for the D.C. Circuit has held that President Obama’s three recess appointments to the NLRB were unconstitutional. In the decision, Noel Canning v. NLRB, the court vacated an unfair labor practice determination on the grounds that the Board lacked a legitimate quorum when it issued its decision.

In 2010 the U.S. Supreme Court held in New Process Steel that the Board must operate with at least three sitting members. Facing the impending loss of a quorum at the Board, the President appointed Sharon Block, Richard Griffin, and Terence Flynn to the agency in January 2012 while the Senate was still holding brief pro forma sessions. This maneuver triggered an outcry from those who claimed that the appointments were invalid as the Senate was not technically in recess at the time. The D.C. Circuit Court agreed:

An interpretation of “the Recess” that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advice-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law. The intersession interpretation of “the Recess” is the only one faithful to the Constitution’s text, structure, and history.

. . . Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception.

According to the D.C. Circuit opinion, the President’s recess appointment authority is limited to the intersession recess of the Senate and only with respect to vacancies that “happen” or arise during such recess.

A final decision in this matter – which will almost certainly be made by the U.S. Supreme Court – could have a significant impact on all of the decisions issued by the Board since January 2012. After the Supreme Court issued the New Process Steel decision, the NLRB had to revisit and resolve more than 600 cases. In recent months, the Board has issued a number of precedent-setting decisions that could meet the same fate. According to a statement issued in response to Noel Canning, Chairman Mark Gaston Pearce said that the Board will continue to perform its statutory duties and issue decisions.

A more detailed analysis of the Noel Canning decision and its potential implications for employers can be found here.

Photo credit: dra_schwartz

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