​Federal Court Rules NLRB Recess Appointments Unconstitutional

In a decision with far-reaching implications for both employee relations and constitutional law, a federal appeals court has ruled that President Obama’s recess appointment of three National Labor Relations Board (NLRB) members last year was unconstitutional. In Noel Canning v. NLRB, the court held that, while the Constitution gives the President the authority to appoint NLRB members during congressional recesses, the Senate wasn’t technically in recess because they were holding “pro-forma” sessions that often involved a single senator appearing in the chamber every third day.

The decision was the result of a challenge to NLRB rulings brought by a canning company. The Justice Department argued that the appointments were valid because the Senate was not in session or acting as a legislative body at the time they were made. No legislation was passed during that time and no votes were held. The company, joined by Senate Republicans, argued that the Senate did not officially go on recess because the Constitution holds the definition of “recess” to the period between one Congress and the next, and the new Congress was already one day old when the President made the appointments. The federal appeals court agreed with the company, stating that “these appointments were invalid from their inception.”

It is expected that the decision will be appealed to the U.S. Supreme Court, but if it is upheld, all of the decisions made by the NLRB in the last year could be invalidated. Additionally, the NLRB could lose its quorum, so it would be prohibited from conducting much of its official business. It is possible that the ruling will be put on hold pending appeal, so employers should keep an eye out for further updates from MSEC on the impact of the decision.