Supreme Court Agrees to Hear Recess NLRB Appointments Case

by Ballard Spahr LLP

The U.S. Supreme Court agreed to review the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, which held that President Obama’s January 2012 recess appointments of three members to the National Labor Relations Board (NLRB) violated the United States Constitution. Given the issues the Court will consider, if it agrees that those recess appointments were unconstitutional, its ultimate ruling could affect only the Board’s most recent actions, or potentially invalidate many prior recess appointments and the actions of the Board taken while those earlier members were seated. Either way, the impact of such a ruling on the NLRB's operations cannot be overstated.

The President made the NLRB recess appointments at issue on January 4, 2012, the day after a new session of Congress had begun and while the Senate was conducting a series of “pro forma” sessions. The D.C. Circuit held that the NLRB appointments violated the U.S. Constitution’s Recess Appointments Clause (RAC) because the RAC only allows the President to make recess appointments during an intersession recess of the Senate, and such appointments can be used to fill only vacancies that first arose during the recess in which the appointments were made.

In its petition for certiorari, the NLRB asked the Court to review only the two grounds on which the D.C. Circuit based its decision. Noel Canning did not oppose the petition, but it asked the Court to consider a third question not addressed below: whether the President's recess appointment authority can be exercised when the Senate is convening every three days in pro forma sessions. The Court agreed to hear this third question.

Given the Court’s 2010 decision in New Process Steel, L.P. v. NLRB (holding that the Board could act only through a quorum of three members), a Supreme Court opinion upholding Noel Canning would invalidate all of the NLRB decisions in which the recess-appointed members participated because unconstitutionally appointed members could not count towards a quorum. It also could potentially invalidate decisions made by prior recess-appointed members (as the Third Circuit recently held in NLRB v. New Vista Nursing and Rehabilitation), again because unconstitutionally appointed members could not count towards a quorum. Additionally, a Supreme Court endorsement of the D.C. Circuit's reasoning could jeopardize other actions taken by this Board (and prior Boards on which recess appointed members sat), such as the naming of Regional Directors to head the Board's regional offices and, by extension, the actions of those appointees.

But the Court could invalidate the 2012 recess appointments without accepting the full measure of the D.C. Circuit's reasoning. Given that it has agreed to consider the third question posed by Noel Canning, the high court could invalidate only the appointments at issue, on the grounds that the Senate was not in a recess (intrasession or otherwise) at the time the President made the appointments because it was holding pro forma sessions every few days.

Even this more limited rationale, as noted above, would have a significant impact on labor law, invalidating almost all of the Board's decisions made since the appointments and, potentially, many of its administrative actions as well. NLRB decisions that would be invalidated under this scenario include the Board’s most recent controversial rulings on social media, the termination of union dues deductions after contract expiration, confidentiality in workplace investigations, and employee handbook disclaimers.

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.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP 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.