US Supreme Court Negates Obama’s “Recess” Appointments to NLRB

June 26, 2014 by Andrew Baker

The Supreme Court today issued its decision in NLRB v. Noel Canning invalidating at least two of the three members President Obama appointed to the National Labor Relations Board in 2012 as “recess” appointments. Recess appointments are those made without Senate approval while the Senate is in “recess.”

The decision throws into limbo a large number of NLRB cases decided by NLRB panels that included the 2012 recess appointees. At the request of the parties, the current Labor Board will have to review those cases again. But because the current Board was confirmed by the full Senate and has a 3-to-2 Democratic majority, we are cautiously optimistic that the negated decisions will ultimately be affirmed. AFL-CIO President Richard Trumka today issued a statement noting, “We are confident the NLRB will handle the pending case impacted by Noel Canning efficiently and expeditiously.”

The decision in Noel Canning turned on the definition of “recess.” The Court concluded that Presidents may continue to bypass the Senate to make recess appointments during some breaks in formal sessions of Congress, and that the Senate may avoid such breaks by convening in periodic pro forma sessions every few days. The Court also concluded that vacancies need not arise during the recess in question for the President to exercise the recess appointment power.

The decision narrows the President’s authority to use the recess appointment power, but its impact may be limited. Because the Senate recently changed Senate rules to allow Executive Branch nominees to be confirmed by a majority of the Senate, preventing a minority of senators from blocking the appointment, the President should now have far less need to resort to the recess appointment process to seat Board appointees.

If you have an NLRB case you think might be impacted by this decision, please contact one of the attorneys at our office.

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