Supreme Court Will Review Noel Canning, Validity of Obama NLRB Recess Appointments

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By Lawrence E. Dubé  


The U.S. Supreme Court June 24 agreed to review a federal appeals court ruling that held unconstitutional President Obama's January 2012 recess appointments of three members to the National Labor Relations Board (NLRB v. Noel Canning Div. of Noel Corp., U.S., No. 12-1281, cert. granted 6/24/13).

In January, the U.S. Court of Appeals for the District of Columbia Circuit held NLRB lacked a quorum to decide an unfair labor practice case against a Washington state bottler because two of the three members on the board panel considering the case had received recess appointments the court found were unconstitutional ( 705 F.3d 490, 81 USLW 1072 (D.C. Cir. 2013); 31 HRR 65, 1/28/13). The D.C. Circuit ruled that the president may only make recess appointments during a recess between Senate sessions, and may only use the recess appointments to fill vacancies that first arise during such an intersession recess.

The Supreme Court granted NLRB's request to consider both prongs of the D.C. Circuit ruling, but also directed lawyers for the government and Noel Canning, a division of Noel Corp., to brief and argue the question of whether the president's power under the U.S. Constitution to make recess appointments may be exercised when the Senate is convening every three days in pro forma sessions.

Controversy Over January 2012 Appointments

In January 2012, as it approached the end of the first session of the 112th Congress, NLRB had three members--Chairman Mark Gaston Pearce (D), and Members Brian E. Hayes (R) and Craig Becker (D). Pearce and Hayes were Senate-confirmed, but Becker failed to win confirmation and was recess-appointed to the board in April 2010.

Becker's recess appointment ended on Jan. 3, 2012, leaving the board with only two members. The Supreme Court held in New Process Steel LP v. NLRB ( 130 S. Ct. 2635, 188 LRRM 2833 (2010); 28 HRR 650, 6/21/10) that the authority of the five-seat board could not be exercised by a panel with fewer than three members.

On Jan. 4, Obama announced recess appointments of Sharon Block (D), Terence F. Flynn (R), and Richard F. Griffin (D) to NLRB.

Noel Canning, a bottling firm, challenged the validity of the NLRB appointments by filing a petition for D.C. Circuit review of an unfair labor practice decision that the company violated Section 8(a)(5) of the National Labor Relations Act when it refused to reduce to writing a collective bargaining agreement it had negotiated with International Brotherhood of Teamsters Local 760 (358 N.L.R.B. No. 4, 192 LRRM 1503 (2012)).

The board panel that decided the case included only one Senate-confirmed member (Hayes), along with recess appointees Block and Flynn, and the company argued in the D.C. Circuit that NLRB lacked the quorum needed to support its unfair labor practice findings and remedial order.

A three-judge panel of the D.C. Circuit found that the NLRB order against the company would otherwise have been enforceable, but the panel concluded that the president's recess appointments were unconstitutional.

Legislators Praise High Court Action

Senate Republican Leader Mitch McConnell (Ky.) said in a statement June 24 that he welcomed the Supreme Court's decision to review the recess appointments. McConnell, along with other Republican senators, filed an amicus curiae brief in the D.C. Circuit supporting Noel Canning, as well as an amicus brief that supported the appellate court ruling but agreed that high court review of the case would be appropriate.

Stating “the President made an unprecedented power grab by placing political allies at a powerful federal agency without even trying to obtain the Senate's advice and consent,” McConnell said the D.C. Circuit “reaffirmed what Republicans and job creators around the country have been saying: the President's attempt to circumvent the Senate with a supposed 'recess appointment' to the NLRB was unconstitutional.”

Sen. Tom Harkin (D-Iowa), chairman of the Health, Education, Labor, and Pensions Committee, said he was pleased the justices will hear the case, but he took an entirely different view of the D.C. Circuit ruling. “The decision the Court will review was not only a radical departure from precedent, but it ignored or summarily dismissed the legal analysis from three other federal appellate courts,” Harkin said. “The D.C. Circuit also turned a blind eye to history, ignoring that Democratic and Republican Presidents alike have made liberal use of intrasession recess appointments for years,” he contended.

Harkin said, “I have urged the NLRB to continue to do its business until and unless the Supreme Court rules on this important question,” adding that “I will fight to get a full slate of nominees confirmed to the National Labor Relations Board so that the agency can continue its important mission.”

House Education and the Workforce Committee Chairman John Kline (R-Minn.) and Subcommittee on Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-Tenn.) issued a joint statement saying they welcomed the Supreme Court's action in Noel Canning, but a final decision in the case “is still months away.”

Kline and Roe noted the House April 12 approved a bill (H.R. 1120), the Preventing Greater Uncertainty in Labor-Management Relations Act, that would keep NLRB from taking actions that require a three-member quorum until NLRB has at least three Senate-confirmed members or the Supreme Court resolves the constitutionality of President Obama's recess appointments to the board (31 HRR 402, 4/22/13).

“As we wait for the Supreme Court to do its work,” Kline and Roe said, “[w]e urge the Senate to pass legislation that will prevent the board from inflicting further harm on America's workplaces.”