Last week, the Fourth Circuit Court of Appeals (which includes North Carolina and South Carolina) joined the D.C. and Third Circuits by invalidating decisions of the National Labor Relations Board made using a quorum consisting of three recess appointments made by President Obama. The January 2012 appointments resulted from the Senate's refusal to approve the President's NLRB nominees.

In NLRB v. Enterprise Leasing Co. Se. LLC, the NLRB issued bargaining orders to two businesses. They appealed to federal court, claiming that the Board did not have the requisite quorum for such order. The plaintiffs contended that the recess appointments were invalid because they were made during the Senate session and not between sessions. In a 2-1 decision, the Fourth Circuit upheld the substantive grounds for the bargaining orders, but invalidated them on the quorum issue.

The court held that the President's constitutional powers to make recess appointments only apply to intersession appointments, and not those made while the Senate is in break during a current session. The Fourth Circuit also concluded that the Senate remained in pro forma session at the time of the appointments, and this formed an independent ground for invalidating the appointments.

The U.S. Supreme Court has accepted review of the D.C. Circuit case and should have the final word on this issue. Earlier this month, the Senate approved new NLRB nominees, ending for now the controversy over the Board's quorum. However, until the Supreme Court issues its decision, NLRB decisions made with recess appointments have questionable applicability to employers in the Carolinas.