D.C. Circuit Invalidates President Obama’s Recess Appointments To The NLRB

On January 25, 2013, the D.C. Circuit Court of Appeals rejected President Obama's January 2012 recess appointments of Board Members Griffin and Block (and former Board Member Flynn, who resigned last year) to the National Labor Relations Board (NLRB) as "constitutionally invalid" in Noel Canning v. NLRB. Noel Canning is the first appellate ruling to decide the validity of the President's recess appointments, although similar challenges are currently pending in several other Circuit Courts of Appeal.

Noel Canning Decision

The D.C. Circuit's decision hinged on the interpretation of the term "recess" in the recess appointments clause in the United States Constitution, which permits the President to fill vacancies that arise "during the Recess of the Senate."

The NLRB argued that a "recess" occurs and permits the President to exercise the recess appointment option whenever there is any break in Senate business, even if that "recess" occurs during an ongoing Senate session. The employer, on the other hand, maintained that there was no recess when the President unilaterally appointed the three Board members on January 4, 2012 because, at that time, the Senate was meeting for pro forma sessions every third day. The D.C. Circuit agreed with the employer and held that the recess appointments clause applies to "the Recess" (i.e., the break between annual Senate sessions), and not simply "a recess." In so doing, the Court reasoned that the practical effect of the NLRB's interpretation would be to "giv[e] the President free rein" to decide what constituted a "recess," allowing him to appoint his preferred nominees whenever he saw fit, which "cannot be the law." In addition, the D.C. Circuit found merit in the employer's secondary argument that the vacancies the President purported to fill did not in fact occur "during the Recess."

Impact on Employers

As a result of its rejection of the recess appointments, the Court ruled that the Board did not have a valid quorum of three Board Members. The United States Supreme Court recently held in its 2010 New Process Steel opinion that the Board must have such a quorum before it can take...