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NLRB v. Noel Canning, et al.: Supreme Court Finds Recess Appointments to NLRB Invalid - National Labor Relations Board

On June 26, 2014, the United States Supreme Court issued its long-awaited decision in the case of NLRB v. Noel Canning, et al., No. 12- 1281. The Court affirmed the decision of the United States Court of Appeals for the District of Columbia, which held that President Obama’s recess appointments of three Board members (Sharon Block, Richard Griffin, and Terence Flynn) in January of 2012 were constitutionally invalid because, at the time the appointments were made, the Senate was not technically in recess. In reaching its decision, however, the Court applied different, narrower reasoning than the Court of Appeals. Rather than focusing on whether the disputed appointments were made during an “inter-session” recess (i.e., breaks between formal sessions of the Senate) as opposed to an “intra-session” recess (i.e.,breaks occurring within a formal session of the Senate), the Court concluded that the length of the particular recess controls whether the President’s recess appointments power is activated. Under this test, if the particular recess – regardless of whether it is an inter-session or intra-session recess – is for less than 10 days, it is too short to trigger the recess appointments clause. Because the Senate was technically meeting every three days in January of 2012 (even though no legislative business was being conducted), the appointments at issue in Noel Canning were invalid.

The Court rejected the Court of Appeals’ alternative rationale that the appointments were invalid because the vacancies the President sought to fill did not occur during an inter-session recess of the Senate. Relying on a long established history of the President using the recess appointments power to fill vacancies that had occurred while the Senate was in session and continued into the recess, without objection or contrary action taken by the Senate, the Court held that the recess appointment power would continue to apply to such vacancies. Thus, the Court scaled back somewhat on the restrictions the Court of Appeals had placed on the President’s use of the recess appointments power.

In terms of “winners” and “losers,” the Noel Canning decision is a bit of a mixed bag. The invalidity of the specific recess appointments at issue in the case was affirmed, which unquestionably is a victory for Noel Canning as the NLRB’s order against it cannot be enforced.  However, the Court did not go as far as the Court of Appeals in restricting the circumstances in which the President may exercise the recess appointments power. Moreover, the Court said nothing about the many other NLRB decisions issued in which Members Block, Griffin or Flynn participated. Presumably, to the extent the parties in those cases have preserved their appeal rights, Noel Canning will be applied to deny enforcement of the NLRB’s order. The far greater impact of the decision (at least from a labor relations standpoint) may be its effect on a number of high profile and controversial decisions the invalid NLRB appointees issued in the areas of social media, class action waivers in mandatory arbitration agreements, confidentiality provisions, and rules governing employee conduct and attitude.  All of these decisions are now potentially invalid. Although the current Board, which consists of five validly appointed members, has the option of revisiting and adopting each of these invalid decisions, to do so will add significantly to its workload and will almost certainly slow down the pace at which new decisions are issued. Employers with cases currently pending at the NLRB will be well-advised to confer with their counsel to determine the best way to take advantage of any opportunities presented by this significant decision.

© 2019 Neal, Gerber & Eisenberg LLP.


About this Author

Eugene Boyle, Attorney, Neal Gerber Law Firm, Partner

Eugene A. Boyle has extensive experience counseling and defending companies nationally in all facets of labor and employment law. Gene regularly advises employers of all sizes, and across many industries, with respect to the impact that employment laws and regulations have on particular business decisions or objectives, and helps devise strategies to achieve the stated objective. He has negotiated and drafted numerous key employment agreements, separation agreements, outsourcing agreements and non-compete and...

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