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Federal Appellate Court Voids NLRB Recess Appointments

    Client Alerts
  • February 01, 2013

Last Friday, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously held that President Obama's recess appointments to the National Labor Relations Board were an unconstitutional exercise of executive powers. In January 2012, President Obama made several appointments to the NLRB and other federal agencies during the Senate's traditional winter recess. Forty-one Republican senators sued the president, claiming that the Senate had not actually gone into recess during this time.

The D.C. Circuit agreed, finding the NLRB recess appointments to be unconstitutional. Noel Canning v. NLRB involved a procedural challenge to a NLRB decision that found the employer in violation of the NLRA due to its failure to reduce a collective bargaining agreement to writing. The court held that the decision was void because the NLRB did not have a legal quorum at the time the hearing was held. The D.C. Circuit concluded that the Senate remained in pro forma session during the recess period, and therefore, the attempted appointments were violations of the Constitution's separation of powers requirement.

Although this case only addressed the specific plaintiff's appeal, the same legal reasoning applies to all NLRB decisions in 2012, as well as appointments to several other agencies. Republicans immediately called for the voiding of scores of NLRB decisions released in 2012, including important pro-employee cases involving union organization and bargaining, arbitration agreements, and Facebook and social media use.

The White House expressed its strong disagreement with the decision, and its position that the ruling does not apply to any other NLRB decision or federal agency. The president will appeal the decision, either to the full D.C. Circuit or to the U.S. Supreme Court. The Supreme Court will likely have the last word on the legality of the attempted recess appointments.