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U.S. Supreme Court Strikes Down Recess Appointments to National Labor Relations Board (NLRB) in Noel Canning Case

On June 26, 2014, the U.S. Supreme Court held unanimously, 9-0, that the three recess appointments to the NLRB by President Obama on January 4, 2012, were unconstitutional. The Court held that President Obama violated the Recess Appointments Clause (Clause) when he unilaterally appointed three members of the NLRB during a three-day recess of Congress. This is the first time the Court has addressed the meaning of the Clause. The Court determined that Congress was not in “recess” as defined under the Clause, and so the appointments were invalid. The Court also held that the President does not have the authority to decide when Congress is in recess, as this violates the Senate’s power under the separation of powers. This means that the NLRB did not have the required quorum to make decisions from January 2012 to July 2013.

This calls into question all 200 decisions made by the NLRB during this time period. The current members of the NLRB are all new and properly appointed, but will now have to review all of the decisions made during the time frame of the unconstitutional appointments. The NLRB Chairman, Mark Gaston Pearce, issued a statement earlier today where he said that the NLRB “is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

This is not the first time the NLRB has had to review its decisions. In June 2010 the NLRB had to review 600 decisions after the U.S. Supreme Court ruled that the decisions were made without the required quorum of three of the five members of the Board.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume IV, Number 177

About this Author

Robert Mulcahy, Michael Best Law Firm, Private and Public Sector Labor and Employment Attorney

Rob is a skilled negotiator whose practice includes both public and private sector management labor and employment law. His work includes National Labor Relations Board (NLRB) proceedings, collective bargaining, contract administration and arbitration proceedings.

Rob also has extensive experience working on employment discrimination matters and wage and hour claims. He helps clients tackle tough issues, including:

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Partner, Industry Group Chair

José is the founder and co-chair of Michael Best’s immigration law practice. Clients depend on his deep knowledge of and experience with U.S. immigration law and employment-based immigration matters, including:

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