NLRB Recess Appointments Invalid, Federal Court Rules

On Friday, January 25th, a federal appeals court ruled that President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were “constitutionally invalid” because the U.S. Senate was not actually in recess at the time.

The appointments were made by the president more than one year ago. The decision is Noel Canning v. NLRB. Because the appointments were invalid, the court overturned an unfair labor practice decision that was made by the NLRB.

Under the Constitution, the president must send nominees for agency posts to the Senate for its “advice and consent.” However, if the Senate is in recess, the president has the power to fill vacancies temporarily. President Obama has made approximately 32 such appointments, including three appointments to the NLRB.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the Senate was still in session when President Obama made the three appointments to the NLRB because they were not made during the official recess that takes place in between sessions. The court summarily rejected the argument that the president has the discretion to decide when the Senate is in recess: 

An interpretation … that permits the President to decide when the Senate is in recess would demolish the checks and balances inherent in the advise-and-consent requirement, giving the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction. This cannot be the law.

The court also found that the appointments were invalid because the president’s recess appointment authority only applies to vacancies that “happen” or “arise” during a Senate recess. In this case, the NLRB vacancies did not open up during a recess, and the appointments were unconstitutional on that ground as well.

This decision means that the NLRB had only one properly confirmed member when it issued the unfair labor practice decision that was up on review before the federal court. The NLRB did not have a proper “quorum” when it issued the decision, and the court vacated it. (The NLRB must have a quorum of three members to take action.)

The lawsuit was brought by a soda bottler and distributer. The NLRB had found that the company’s refusal to execute a written collective bargaining agreement was an unfair labor practice and ordered it to sign the agreement with the labor union. The company challenged the NLRB’s authority to issue the decision because of the improper recess appointments. The court agreed with the company’s argument.

The decision calls into question the legitimacy of a number of precedential decisions issued by the NLRB since January of 2012, including decisions regarding the use of social media and the rights of employees in all workforces to discuss the terms and conditions of their work.

In a statement issued in response to the decision, NLRB chairman Mark G. Pearce said the NRLB disagrees with the court’s decision and the NLRB will continue to “perform its statutory duties and issue decisions.”

It is likely that this issue will be appealed to, and ultimately resolved by, the U.S. Supreme Court.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

HR Watchdog will cover this issue as it develops. Stay tuned for updates.