March 28, 2023

Volume XIII, Number 87


March 27, 2023

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Supreme Court Issues Opinion in Controversial NLRB v. Noel Canning Case

On June 26, 2014, the U.S. Supreme Court issued its opinion in NLRB v. Noel Canning, the controversial case dealing with the President's ability to make appointments while the Senate is in "recess." As predicted by Varnum's own Dennis Devaney, a Reagan appointee as a Member of the NLRB, when he testified before the US House of Representatives Committee on Education and the Workforce in February 2012, the Court struck down President Obama's three recess appointments to the National Labor Relations Board, made during a three day break between pro forma sessions of the Senate.

In a unanimous (9-0) decision, the Court held that President Obama lacked the authority to make the appointments. The Court stopped short of invalidating recess appointment power altogether, however. Instead, the Court concluded that President Obama's picks were invalid because there had not been a sufficiently long recess period to trigger the President's recess appointment authority. The appointments were made during a period between December 2010 and January 2011 in which the Senate was holding "pro forma" sessions every three days at the time.  Justice Stephen Breyer, who delivered the opinion of the Court, stated that "Three days is too short a time to bring a recess within the scope of the clause. Thus we conclude that the president lacked the power to make the recess appointments here at issue.” Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined the opinion.  Justice Antonin Scalia joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas concurred in the result, but would have restricted even further the recess appointment power of the President based upon the language of the Recess Appointments Clause.

The Court also ruled on a few other ancillary issues. For example, the Court rejected the D.C. Circuit's determination that recess appointments could only happen during intersession breaks between enumerated sessions of Congress, as opposed to intrasession breaks within a given enumerated session. Further, the Court held that the President can only use recess appointments to fill vacancies that occur during the same recess in which the appointment is made, and not vacancies that have arisen prior to the recess.

The decision will likely invalidate hundreds of NLRB decisions, which the Board will be forced to re-decide if not settled or otherwise resolved by the parties. NRLB Chairman, Mark Gaston Pearce, stated today that the NLRB is "analyzing the impact that the Court's decision has on [NLRB] cases" and reiterated that "the [NLRB] has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act" and resolve "any cases affected by today's decision as expeditiously as possible."

© 2023 Varnum LLPNational Law Review, Volume IV, Number 178

About this Author

Richard Hooker, labor and employment attorney, Varnum

Dick Hooker has had significant experience in traditional labor relations, state/federal agency work, employment litigation, union election campaigns, unemployment insurance taxation matters, and arbitration of employment disputes. He is a facilitative mediator for the U.S. District Court, Western District of Michigan and the Michigan Courts, and he is listed as an arbitrator and mediator with National Arbitration & Mediation, Inc., the American Settlement Centers and the National Arbitration Forum.  

David E. Khorey, Labor Employment Attorney, Varnum, Workplace Confidentiality Matters Lawyer

Dave’s “client-centered” practice involves a variety of labor and employment issues. He provides practical and confidential ongoing advice and consulting on a number of sensitive and complex labor and employment matters, from problem employee situations to multi-facility collective bargaining negotiations. His representative clients include diverse industries (such as automotive, printing, transportation and hospitals) throughout the nation.  

Dave has also served as chair of the firm.

Honors & Recognitions...

John Patrick White, labor, employment and education lawyer, varnum

Pat's practice concentrates on the full spectrum of civil rights issues including race, gender and disability matters, free speech and electronic privacy issues in the workplace. In addition to litigation, he also does traditional labor work, including negotiation and arbitration, both for public and private sector clients. He also maintains a strong background in education law, representing school districts, community colleges and colleges and universities, both with respect to employment issues as well as student issues.