NLRB Proceedings In The Wake Of 'Noel Canning'

On January 25, 2013, lawyers for Jones Day representing the Coalition for a Democratic Workplace and the U.S. Chamber of Commerce, and arguing on behalf of the Noel Canning Corporation, won a landmark victory in Noel Canning v. NLRB, a lawsuit challenging the authority of the National Labor Relations Board ("NLRB" or "Board") in the U.S. Court of Appeals for the D.C. Circuit. In Noel Canning, the Court of Appeals ruled that the three "recess" appointments made by President Obama to the NLRB on January 4, 2012, were "invalid from their inception" because the President exceeded the scope of his authority under the Recess Appointments Clause. The court's holding was supported by two grounds, both of which have broad implications. The court held that recess appointments may be made only during the recess between each Session of Congress—which happens, at most, only once per year—rather than breaks occurring during each Session of Congress. In other words, appointments may be made only during "inter-session" recesses. The court further held that recess appointments can be made to fill only those positions that become vacant during the recess, such that the President cannot make recess appointments to fill preexisting or longstanding vacancies.

Under the D.C. Circuit's ruling, the Board has not had a proper quorum since January 4, 2012. Nevertheless, in a press statement issued on the date of the decision, NLRB Chairman Mark Pearce indicated that the Board will continue to operate with recess appointees Sharon Block and Richard Griffin despite the ruling of the Court of Appeals. Indeed, Pearce asserted that "The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals." Moreover, it is unclear what steps the Obama administration will take in response to the D.C. Circuit's decision. In a press conference on January 25, White House Press Secretary Jay Carney indicated that they are prepared to be aggressive.

At the present time, it appears that the NLRB and the Obama administration intend to continue litigating the issue of the recess appointments. The Constitutionality of the recess appointments is currently at issue in more than a dozen cases pending in other courts. Further, the...