Supreme Court Finds President’s NLRB “Recess” Appointments Unconstitutional

On June 26, 2014, in NLRB v. Noel Canning, the Supreme Court of the United States unanimously decided that President Obama’s purported “recess” appointments of National Labor Relations Board members on January 4, 2012 violated the Constitution because the Senate was not on a break of “sufficient length” when the President appointed them, and thus the President could not dispense with Senate consent of the appointments. The decision calls into question hundreds of NLRB rulings between January 4, 2012 and August 7, 2013, when a new Board was finally sworn in with Senate approval of the President’s appointments. Those rulings include numerous pro-union decisions dealing with dues checkoff clauses, confidentiality policies and practices, employee social media activities, conduct during bargaining unit elections and workplace investigations. More globally, the decision ends an arduous debate as to the meaning of the words “[v]acancies that may happen during the Recess” in the Constitution’s Recess Appointments Clause.

By way of brief background, the Constitution generally requires the Senate to approve the President’s appointments of United States officers, including members of the NLRB. At issue in Noel Canning was the President’s appointments of three NLRB Members on January 4, 2012 during a three-day break when the Senate was not conducting any business. Noel Canning, a Pepsi-Cola distributor, maintained that an NLRB order requiring it to execute a collective bargaining agreement was invalid because the appointments of three members of the five-member Board had not been approved by the Senate, and thus the Board lacked a quorum. The President relied on the so-called Recess Appointments Clause, which carves out a limited exception that allows the President to fill vacancies without the Senate’s approval that “happen” during “the Recess” of the Senate.

In examining the meaning of the phrase“[v]acancies that may happen during the Recess” to decide whether the President’s appointments fell within the confines of the Recess Appointments Clause, the Court found the phrase ambiguous, and looked to the phrase’s historical application and interpretation by various presidents and government officials. The Court reached the following conclusions:

  • “The recess” that permits Presidential appointments without Senate approval is any break by the Senate of “sufficient length,” including not only the Senate’s formal intersession breaks but also its breaks intrasession, with a break of less than 10 days being presumptively not of sufficient length in the absence of extenuating circumstances, such as a “national catastrophe.”
  • Vacancies covered by the Recess Appointments Clause include those that arise when the Senate is in recess as well as those that occur before and continue into the recess; and
  • The Senate is in session when it says it is, which includes pro forma sessions, provided the Senate retains the capacity to transact business under its rules.

Accordingly, as the Senate was on a break of only three days when the President made the challenged appointments to the Board without Senate approval, those appointments could not be upheld under the Recess Appointments Clause. Presumably, had the Senate been in recess for at least 10 days, albeit on an intrasession break, the Court would have upheld the appointments.

The NLRB has announced that it is “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” Employers impacted by Board rulings issued between January 4, 2012 and August 7, 2013, the timeframe covered by the Court’s decision, should consult with counsel as to an appropriate course of action.

For answers to any questions regarding this blog or with regard to labor issues generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

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