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Employment Blog

For Obama NLRB, Recess is Not as Fun as it Once Was: Federal Court Holds President's Recess Appointments to the NLRB are Unconstitutional

Authored by Ruder Ware Attorneys
Posted on January 30, 2013
Filed under Employment

On January 25, 2013, the federal D.C. Circuit Court of Appeals issued an opinion finding that President Obama's January 4, 2012 recess appointments to the National Labor Relations Board (Board) were unconstitutional (appointments made after the Senate began a new session on January 3, 2012 and while this session continued). The case is Noel Canning v. NLRB, Case No. 12-1115, (D.C. Cir. Jan. 25, 2013) and a full copy of the opinion is available here. In Noel Canning, the Court held that the Board lacked the required three-member quorum when it issued its decision in the case in February 2012 because certain Board members (Members Block, Flynn and Griffin) were not appointed during "the recess" of the Senate.

For Bill Clinton fans out there, you'll be excited to learn that the Court carefully scrutinized the meaning of the word "the" in connection with its analysis of the proper application of the so-called Recess Appointments Clause in the Constitution. Ultimately, the Court determined that the Recess Appointments Clause refers exclusively to "intersession" recesses, or when the Senate is not in session, not "intra-session" recesses, or during breaks within an ongoing session. Significantly, the Court concluded that President Obama's January 4, 2012 appointments to the Board did not occur during an actual recess, but only during a break in an ongoing session of the Senate.

This opinion potentially has broad implications, it could mean that Board decisions on and after January 4, 2012 are invalid (it could also mean that some Board decisions prior to January 4, 2012 are invalid because former Member Craig Becker was also not appointed during an "intersession" recess, as construed by the D.C. Circuit Court of Appeals). Also, the Board could continue to enforce its post January 4, 2012 decisions in federal jurisdictions other than the D.C. Circuit (if those courts disagree with the D.C. Circuit's Noel Canning decision). Unfortunately, there is uncertainty because everyone expects the Board to appeal (first to an en banc panel of the D.C. Circuit Court of Appeals and, if necessary, to the Supreme Court).

We will continue to monitor this situation closely.