United States: Supreme Court Strikes Down NLRB Recess Appointments

Last Updated: July 7 2014
Article by Steven M. Bernstein

Dealing the agency its second major setback on the legitimacy of its quorum, the Supreme Court has invalidated a trio of recess appointments made to the NLRB back in January of 2012. Moments ago, the Court handed down its landmark decision in NLRB v. Noel Canning, upholding a  challenge to the agency's authority to issue hundreds of decisions over the 18 months that followed the invalid appointments.

In a case of first impression, the Court lent strict interpretation to Article II, Section 2 of the U.S. Constitution, which empowers the President to "fill up all Vacancies that may happen during the Recess of the Senate." This decision has broad ramifications for the employers involved in the invalidated cases (all of which must now be re-decided), and on the Board's ability to maintain focus on a pro-labor agenda over the course of this year. It also promises to reshape the delicate balance between executive and legislative powers for decades to come.


Back in June of 2010, the Supreme Court first rebuked the NLRB for want of a legal quorum with its decision in New Process Steel, invalidating the Board's authority to act with only two members and temporarily overturning hundreds of cases in the process. That upheaval proved to be short-lived, however, as a trio of new Board members took their turns on "rump panels" with their incumbent counterparts to effectively rubber stamp those decisions.

By the end of 2011, however, the NLRB was once again confronting a possible return to the days of two-member status. Member Schaumber had long since departed, and Chairman Leibman's term expired in August, bringing the Board to only three members for the duration of that year. Member Becker's recess appointment was slated to end on January 3rd of 2012, leaving only Democratic Chairman Mark Pearce and Republican member Brian Hayes.

With the NLRB again at risk of losing a proper quorum (and therefore its legal authority to act by virtue of New Process Steel), the Administration moved swiftly to fill the vacancies with a trio of new recess appointees on January 4, 2012. Acting without the Senate's "advice and consent," President Obama appointed pending Democratic nominees Sharon Block and Richard Griffin, along with Republican nominee Terence Flynn, to fill the vacancies and preserve the agency's ability to continue rendering decisions thereafter. The recess appointees participated in hundreds of cases through July of 2013, when they were replaced by set of four new confirmed nominees who joined incumbent Chairman Pearce.

But as fate would have it, their appointments were made at a time when the Senate was technically not in recess, but instead remained in a pro forma session that had commenced on December 17 and continued over the holidays. The Administration maintained that for all intents and purposes, the Senate was not in session at all because it was not actually meeting and conducting business. In the face of concerns that the Administration was without authority to confer these appointments while the Senate remained in session, the agency declared that it too remained open for business and proceeded to issue a series of new decisions, one of which was adverse to a family-owned bottling company called Noel Canning.

How The Case Arose

Over the course of 2011, Noel Canning was in the process of contesting unfair labor practice charges alleging that it had refused to execute a collective bargaining agreement to which it had orally agreed. On the heels of an adverse determination by the Administrative Law Judge presiding over the case, the company filed an appeal in an effort to secure relief from the NLRB. In February, 2012, the agency upheld the ALJ's findings.

Following standard procedure, a trio of Board members participated in that decision, two of whom had just been appointed over recess. Shortly thereafter, Noel Canning petitioned for review with the U.S. Court of Appeals for the D.C. Circuit on the basis that those appointments failed to pass constitutional muster, and that it was not up to the Executive branch to decide when the Senate was in recess.

In January of 2013, the D.C. Circuit Court held that the Board's decision would have been enforceable, but for the fact that the underlying recess appointments were unconstitutional. Because the Board's decision was not approved by a quorum of three properly appointed members, it was struck down as invalid. Writing for the panel, Judge Sentelle applied a strict reading of Article II, Section 2 to conclude that the "recess" requirement refers only to a recess between formal Senate sessions, and that the Constitution did not confer an executive right to make "intrasession" appointments. Because the appointments were made after the start of the 112th Congress, the court ruled (in a finding largely adopted by the Circuit Court of Appeals for the 3rd Circuit) that they were made intrasession and therefore invalid.

Two of the judges went on to note that the underlying vacancies did not come into being during an intersession recess of the Senate, and found the ensuing appointments to be invalid for that reason as well. The NLRB petitioned directly for Supreme Court review of the Circuit Court's rationale on both grounds. Noel Canning did not take issue with the petition, but did ask the Court to consider a third issue revolving around the President's authority to exercise recess appointment powers while Senate is convening every three days in pro forma session, as was the case in early 2012. The high court agreed to take the case, and to consider all three issues.

The Court's Ruling And Its Impact On The NLRB

In a unanimous decision with an extensive concurring opinion from Justices Scalia, Roberts, Thomas and Alito, the Court ruled that the Administration exceeded its authority by invoking Article II to fill a trio of vacant NLRB positions in early 2012. Reviewing a litany of recess appointments stemming back decades, the majority concluded the Congress ultimately decides when it stands in recess, and that a recess of less than ten days is presumptively too short to confer appointment power upon the President. Consequently, there was no recess at the time the President acted, and his appointments were therefore rendered invalid.

While the ruling leaves the President's substantial recess appointment powers intact, it emphasizes that even the Executive in Chief must respect Congress's pro forma recess authority, and that if either house of Congress is in control of the opposing party, then those powers can be effectively blocked. Because the President failed to respect that authority in this particular case, the Court concluded that it had no choice but to uphold the D.C. Circuit's decision, invalidating the three recess appointments in the process.

Reading from his concurrence, Justice Scalia criticized the majority for relying upon the vague nature of historical precedent, suggesting instead that a strict reading of the Constitution would have confined recess appointments to those made between formal sessions. Scalia went on to accuse the majority of "judicial adventurism" by constructing presumptive standards as to the proper length of a pro forma recess, and suggesting that the anachronistic nature of recess appointments should preclude the judiciary from making them broadly available.

What This Means For Employers

At a minimum, this decision represents good news for approximately 600 employers who sustained adverse determinations from the highest level of the NLRB between January of 2012 and July of the following year. Every one of these cases (many of which were controversial themselves) was decided by a Board that lacked authority to act, and is therefore null and void ab initio (i.e., from the beginning). While many will presumably meet the same fate a second time around, that prospect is by no means a certainty, given the potential impact of two new Republican members, and four new members overall.

Unlike the Board's last encounter with a Supreme Court reproach to its quorum, this time the agency would be left with but a single member (Chairman Pearce) who participated in the decisions at issue. That would force the Board to establish new three-member panels in every case, consisting of a majority of members who have yet to consider the underlying facts. More importantly, there's nothing to preclude the establishment of some panels consisting of two Republican members, in which case the fortunes of the parties could be inexorably altered. Consequently, the rubber stamp may not be utilized to the same degree this time around.

By the same token, the breadth of this decision now calls into question a host of additional cases decided between August 27, 2011 and January 3, 2012, to the extent that they too were quorum-deficient due to the participation of an improper recess appointee. Among them are dozens of three-member cases involving former member Becker, who himself was serving recess appointment. Becker participated in several Board developments of note, including the so-called "quickie election" rule that has since been republished, and the controversial D.R. Horton decision that now forms the basis of current Board doctrine invalidating mandatory arbitration provisions containing class waivers.

While the vast majority of American businesses would not be directly impacted under either scenario, these developments could influence the course of labor relations on a much broader scale in the months to come. Thus far, the Board has made no secret of its intent to implement an activist pro-labor agenda, and Chairman Pearce has gone on record with his support of a quickie-election rule that could conceivably be reinstated with little fanfare.

If the Board were forced to confront the daunting task of reevaluating a myriad of improperly decided cases issued over the past two years, however, it could get bogged down in exercises of retrospection that may forestall that agenda for quite some time. Consequently, the implications of Noel Canning could ultimately prove to be far-reaching, and we encourage employers to closely monitor developments at the NLRB as it adapts and responds to the high Court's decision.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions