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NLRB Developments
Landmark Federal Court Decision Invalidates NLRB Recess Appointments

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On January 25, 2013, the U.S. Court of Appeals for the District of Columbia ruled in Noel Canning v. NLRB  that President Barack Obama’s three January 2012 appointees to the National Labor Relations Board (NLRB) violated the Recess Appointments Clause of the U.S. Constitution. The impact for HR professionals is that the ruling calls into question every decision the Board has made since January 2012, including controversial decisions on micro-units and employer social media policies.

In Noel Canning, the appeals court unanimously held that President Obama’s January 4, 2012 appointments of Sharon Block, Terence Flynn, and Richard Griffin to the NLRB were not valid "recess" appointments under the Constitution because they did not occur during an “intersession” recess of the U.S. Senate. In addition, the recess appointment of Consumer Financial Protection Bureau director Richard Cordray, made at the same time, is also called into question by this ruling.

As a member of the Coalition for a Democratic Workplace, SHRM intervened on behalf of Noel Canning arguing that the recess appointments of Block, Flynn and Griffin were invalid. The CDW brief contended that “intrasession recess appointments are permissible only if, at a minimum, the Senate first ‘adjourn[s] for more than three days’ under the Adjournment Clause,” and “it is undisputed that the Senate never “adjourn[ed] for more than three days” under the Adjournment Clause when the three NLRB appointments were made.

Questions remain about the Noel Canning decision’s practical impact on the NLRB. While the decision appears to leave the NLRB with only one member, Chairman Mark Pearce, and thus an invalid quorum to issue decisions, the NLRB issued a statement indicating that, "The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld…”

The NLRB is expected to appeal the court’s Noel Canning decision.  Thus, the constitutional question about the limits of presidential appointment authority may ultimately be decided by the U.S. Supreme Court, should it decide to hear the case.

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