No Recess: Supreme Court Decision Invalidates Three 2012 NLRB Appointments and Narrows President’s Recess Appointment Powers

by Williams Mullen

On June 26, 2014, the United States Supreme Court ruled that President Obama’s purported “recess” appointments of three National Labor Relations Board members was an invalid exercise of executive power. The decision has potentially sweeping ramifications for the future of the Board (as well as, more broadly, all executive appointments).
President Obama appointed the three members in question—Sharon Block, Richard Griffin, and Terence Flynn—during a 3-day adjournment between January 3 and January 6, 2012.  These appointments were critical to the continued operation of the Board, as the Supreme Court had previously ruled that the Board required a “quorum” of at least three members to exercise its statutory powers. Following their appointment, Flynn remained on the Board until July 2012, and Block and Griffin served until 2013. 
Generally, the President must consult the Senate before exercising his power to appoint federal officers. However, under the Recess Appointments Clause, the President has the power to “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.” The Supreme Court’s decision in Noel Canning turns on the meaning of this language. In its opinion, the Court acknowledged U.S. presidents’ long history—dating back to the founding fathers—of making appointments while the Senate is not in session. While acknowledging this important tradition, the Court nevertheless took the position that a 3-day break is too short to constitute a “recess.” The majority held that the President has the power to fill any existing vacancy during any recess, whether during or between sessions, as long as the recess is of “sufficient length.” Reasoning that a 3-day break is too short to require House approval under the Adjournments Clause of the Constitution, the Court concluded that it was also too short to constitute a recess under the Recess Appointments Clause (but suggested that breaks of 10-days or more would likely be a valid “recess”). 
Though a seemingly narrow holding, the political ramifications are potentially quite broad. Because the senate can hold cursory “pro forma” sessions (in which a single senator arrives in the chamber, bangs a gavel, then leaves) virtually at-will, under Noel Canning, an opposition Senate theoretically could block the appointment of any executive appointee by preventing recesses indefinitely. The holding is particularly significant in the NLRB context, because of the prior holding that it must have a three member quorum to operate.
What are the ramifications for employers? In the short term, the holding calls into question the actions undertaken by the improperly appointed members, including the over 1000 cases decided while Block, Griffin and Flynn were on the Board. This impact may prove less dramatic than it would seem, however. A similarly large number of decisions were invalidated after the Court’s “quorum” holding, but in practice the vast majority of those disputed decisions were later re-issued with little comment.
In the medium to long term, however, the prospect of a partial shutdown of the NLRB is quite real. If a Democratic President were faced with a Republican Senate, or vice versa, the Senate could easily stymie the President’s efforts to appoint a member or members to maintain a quorum. If that were to happen, the investigatory arm of the NLRB, its General Counsel, regional directors, and investigators, could continue to investigate and litigate charges. Similarly, the Board’s administrative law judges (or “ALJs”) could continue to rule on such charges. However, the ALJs’ decisions would be placed in legal limbo, and remain potentially unenforceable, until there was a quorum on the Board.
For now, these consequences remain hypothetical. In the meantime, however, employers with cases decided by a Board including Block, Griffin or Flynn are advised to consider their options.


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.

© Williams Mullen | Attorney Advertising

Written by:

Williams Mullen

Williams Mullen 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 using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*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.