D.C. Circuit Finds NLRB Recess Appointments Unconstitutional


In a stunningly positive development for employers, the District of Columbia Circuit Court of Appeals today struck down the Obama Administration's purported recess appointments of three members of the five-member National Labor Relations Board ("NLRB" or "Board"), specifically, Members Block, Flynn, and Griffith.  Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013).  The Court's ruling is that the NLRB has lacked a quorum since January 3, 2012.  Under the Supreme Court's decision in New Process Steel v. NLRB, 130 S. Ct. 2635 (2010), decisions issued by the Board without a quorum are not valid.  

Accordingly, the Court vacated the Board's order against the employer in Noel Canning, 358 NLRB No. 4 (February 8, 2012).  More significantly, the validity of every decision issued by the NLRB in the past year, including some of the Agency's most controversial reversals of long-standing precedent, is now in doubt.  The Administration and the NLRB likely will appeal the decision to the Supreme Court.

Primarily, the D.C. Circuit Court of Appeals held that the term in the Constitution permitting the President to appoint officers subject to Senate confirmation during "the Recess" applies only to intersession recesses.  The Obama Administration and the NLRB had contended that the term could be applied to permit appointments during a session of Congress.  Among other things, they contended that an adjournment as brief as three days constituted a "recess" sufficient to permit the President's so-called "recess appointment" of NLRB members.  The Court today rejected these arguments, finding their adoption "would wholly defeat the purpose of the Framers [of the Constitution] in the careful separation of powers structure reflected in the Appointments Clause."

The D.C. Circuit also held that the NLRB lacked a quorum to issue decisions because sufficient vacancies on the Board did not "happen" during the Recess of the Senate.  Because the relevant vacancies on the Board did not "happen" during an intersession recess, they could not be filled by recess appointment.

Because appeal of the Court's ruling is widely expected, the decisions issued by the Board cannot be completely disregarded.  However, those decisions will remain in limbo while the appeal process plays out.  Additionally, the NLRB may refrain from issuing further decisions while it pursues an appeal.  If nothing else, today's decision has significantly pushed back against an NLRB that was aggressively attempting to expand its reach and leaning heavily to the side of organized labor.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Sherman & Howard L.L.C. | Attorney Advertising

Written by:


Sherman & Howard L.L.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:

Sign up to create your digest using LinkedIn*

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.

Already signed up? Log in here

*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.