The United States Court of Appeals for the D.C. Circuit ruled Friday, January 25, 2013, President Barack Obama's National Labor Relations Board (NLRB) appointments were unconstitutional when he bypassed Senate confirmation to fill vacancies, also known as recess appointments, as the Senate was not in recess.
In Noel Canning, a Division of the Noel Corporation v. National Labor Relations Board, No. 12-1115 (D.C. Cir. Jan. 25, 2013), a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said Obama did not have the power to make three recess appointments to the National Labor Relations Board last year. At the time of the appointments, the Senate was meeting in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.
President Obama has consistently argued he acted properly in making the so-called recess NLRB appointments because the Senate was away for the holidays on a 20-day recess. But the three-judge panel ruled that the Senate technically stayed in session when it was gaveled in and out every few days for pro forma sessions. As the recess appointments were unconstitutional, they deny the Board the required quorum of three members and invalidate the Board's action as held in New Process Steel, 130 S.Ct. 2635 (2010).
The Obama administration is expected to appeal the decision to the U.S. Supreme Court. Meanwhile, more than a dozen other cases are pending before other courts of appeals on this same issue. If the Supreme Court ultimately finds the recess appointments inappropriate, hundreds of decisions issued by the board over the prior year could also be found invalid. This would leave the five-member labor board with only one validly appointed member, effectively shutting it down. The NLRB faced the same issue from December 2007 to March 2009, when only two members were validly appointed. The board is allowed to issue decisions only when it has at least three sitting members.
Chairman Pearce issued the following statement in response to the decision: "The Board respectfully disagrees with today's decision and believes that the President's position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals."
Employers in Columbus and throughout Ohio should consult with their labor counsel to monitor this developing situation both in the courts of appeal and the Supreme Court to ensure all potential defenses are strategically presented in their representation of matters before the Board.
By: Justin A. Morocco