No Legal Quorum at the NLRB Again

On January 25, 2013, in Noel Canning v. National Labor Relations Board a unanimous panel of the D.C. Circuit Court of Appeals held that President Obama's three January 4, 2012 recess appointments to the NLRB were invalid.  To understand the decision, some historical background is in order. In 2010, the United States Supreme Court held that the National Labor Relations Board cannot lawfully make any decision without at least three members.  New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). As 2011 came to an end, there were only three members of the NLRB, two whose nomination had been confirmed by the Senate in June 2010, and a third individual who was a recess appointee whose appointment would end on January 3, 2012.  

That would leave the NLRB with only two members, which, per the New Process Steel case, would not be sufficient for the NLRB to conduct business. The U.S. Senate met in a pro forma session on January 3, 2012, to convene the second session of the 112th Congress and to fulfill its constitutional duty under Amendment XX, § 2.  On the following day, January 4, 2012, President Obama appointed three individuals to the NLRB purportedly pursuant to the Recess Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 3.  Those appointments would bring the NLRB to a full five-person complement. The Noel Canning court held that those three appointments were invalid.  The panel focused on the language the Recess of the Recess Appointments Clause the Clause provides, "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate to conclude that the constitutional phrase does not mean a recess, and does not mean whenever there is an adjournment. 

It determined that whatever the Senate was doing on January 4, 2012, it was not the Recess. The Noel Canning case involved an appeal from only one decision of the NLRB:  The federal appellate court refused to enforce a Board order in the case before it, concluding that the Board itself lacked the jurisdiction to issue it.  That decision flowed from the determination that  the recess appointees were not valid members of the NLRB, and thus the Board lacked the required quorum of three.  Noel Canning is a decision of but one U.S. Court of Appeals.  Other federal appellate courts may reach different conclusions on the legality of the appointments. Indeed, the Eleventh Circuit Court of Appeals applied a different analysis to the Recess Appointments Clause in a case before it in 2004.  That said, the case clearly has implications for decisions the NLRB that were issued from January 4, 2012 through to today.  This blog will continue to cover the fallout from this decision as it may develop.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed. 

- Russ Samson