On January 25, 2013, the U.S. Court of Appeals for the District of Columbia held that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) were invalid and that the NLRB lacks a quorum to issue decisions. Noel Canning Div. of Noel Corp. v. NLRB, No. 12-1115 (D.C. Cir. 2013).
When fully staffed, the NLRB has five members. By longstanding tradition, three members come from the President’s party and two from the other party. A quorum of the NLRB requires three members. NLRB members serve staggered, five-year terms and must be confirmed by the Senate. The President can fill NLRB vacancies temporarily by making recess appointments while the Senate is in recess.
In Noel Canning, the Court ruled that the Senate was not in recess on January 4, 2012 when the President made the alleged recess appointments and that the three attempted recess appointments to the NLRB – members Sharon Block (D), Terence Flynn (R) and Richard Griffin (D) – were invalid. The Court specifically rejected the administration’s claim that the President could decide that the Senate was not in recess when the Senate itself said it was in session.
Further, the Court ruled that President Obama’s recess appointment power applies only during an “intersession” recess of the Senate, not during intrasession adjournments. Because President Obama made his recess appointments on Jan. 4, 2012, which was not during an intersession recess, the recess appointments were invalid. The Court also found that even during an intersession recess, a recess appointment could only be made to fill a vacancy that occurred during the recess.
What does this mean?
The Court’s ruling leaves Chairman Mark Gaston Pearce (D) alone on the Board without a quorum. If the Court ruling stands, the NLRB could not issue any decisions or issue any rules until the Senate confirms NLRB nominees. The validity of many significant and controversial NLRB decisions in the last year would be in doubt.
The Supreme Court will almost certainly address this issue given its importance.