High Court to Hear NLRB’s Recess Appointments Case


This morning the Supreme Court of the United States agreed to hear a case that calls into question the validity of a number of National Labor Relations Board (NLRB) decisions. On June 20, 2013, the Supreme Court grated certiorari in Noel Canning v. NLRB, a case in which the D.C. Circuit Court of Appeals ruled that President Obama’s recess appointments to the NLRB on January 4, 2012, were unconstitutional. According to the Noel Canning decision, the appointments of Sharon Block, Terence F. Flynn, and Richard F. Griffin were invalid because President Obama did not appoint them during the “recess” of the Senate.  

The Supreme Court is slated to decide three issues in this case. They are: 

  1. whether the president’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate or is instead limited to recesses that occur between enumerated sessions of the Senate;
  2. whether the president’s recess-appointment power may be exercised to fill vacancies that exist during a recess or is instead limited to vacancies that first arose during that recess; and
  3. whether the president’s three recess appointments were invalid because they were made when the Senate was in session and not in recess.

The Third Circuit Court of Appeals recently issued a related decision, ruling on the validity of former Board Member Craig Becker’s appointment. In NLRB v. New Vista Nursing and Rehabilitation, the court interpreted the Recess Appointments Clause to find that the word “recess” meant that the president could use recess appointments only during intersession breaks. 

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc. and shareholder in the firm’s Washington, D.C. office: “This is truly an important case with implications not only for the NLRB, but for recess appointments for all agencies of government. Although the Court was expected to grant certiorari, the key issue it had to determine was whether to agree to hear the issue based on all three Questions Presented, including, as requested by Noel Canning and its amici, whether the president has the authority to override the rules of the Senate and determine whether it was available to act on its advice and consent role on presidential nominations. Here, the Senate was in session when the president determined it was not available and thus went forward with recess appointments when the Senate was not in recess. We were pleased, therefore, by the Court’s decision to hear that issue.” 

This morning, the Court also granted certiorari in UNITE HERE Local 355 v. Mulhall on the issue of whether an employer and union violate Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186, by entering into an agreement under which the employer provides a prohibited “thing of value” to a union by promising to remain neutral to union organizing, granting union representatives limited access to the employer’s property and to employees by providing personal contact information, in exchange for obtaining the union’s promise to forego its rights to picket, boycott, or otherwise put pressure on the employer’s business. 

Hera S. Arsen, J.D., Ph.D. is a senior editor of firm publications in the Torrance, California office of Ogletree Deakins.

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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.

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