• Recess Appointments at NLRB - Front and Center for 2013
  • December 28, 2012 | Authors: Philip B. Rosen; Harold R. Weinrich
  • Law Firms: Jackson Lewis LLP - New York Office ; Jackson Lewis LLP - Reston Office
  • The U.S. Court of Appeals for the District of Columbia Circuit will soon decide whether National Labor Relations Board Members Sharon Black and Richard Griffin, both Democrats, as well as former Member Terence F. Flynn, a Republican, were properly named to the panel as interim appointees by President Barack Obama at the beginning of 2012. An adverse ruling could cast into doubt the validity of many recent Board decisions and other actions in which they participated, and leave the agency in disarray. The Court recently heard oral argument in Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153, which presents the Court with this issue. Challengers of the recess appointments contend that the Senate was not in recess at the time President Obama named the three interim Members to the Board on January 4, 2012, as constitutionally required, and therefore, the President did not have authority to make such appointments. Interim appointments are those made by a president when the Senate is not in session. Such appointees typically serve until the end of the next Senate session.

    At the beginning of 2012, the NLRB had only two members, Democrat Mark Pearce and Republican Brian Hayes, rather than its full complement of five members. Instead of seeking Senate consent for nominees already identified to fill the three empty NLRB seats, President Obama gave Sharon Block, Richard Griffin, and Terence F. Flynn recess appointments to serve immediately on the Board. On January 9, 2012, the three were sworn in as Board members pursuant to their recess appointments. This brought agency membership to five. Mr. Flynn subsequently resigned effective July 24, 2012.

    The four-member Board proceeded to act until December 16, 2012 (when Member Hayes’s term expired). One of the actions the agency took was to order soft-drink bottler and distributor Noel Canning to enter into a collective bargaining agreement with a labor union. The company sought review of the order in the Court of Appeals for the District of Columbia Circuit. Disputing the validity of the interim appointments, the company asserts the Board did not have authority to issue the order. According to the company, the recess appointments were invalid, and, therefore, the Board lacked the three-member quorum required by statute to do business at the time it entered the order.

    The U.S. Chamber of Commerce and the Coalition for a Democratic Workplace intervened on behalf of the company. Several similar lawsuits are pending across the country, including a case currently before the U.S. Court of Appeals for the Seventh Circuit.

    Noel Canning and other opponents of the recess appointments contend that the Senate must adjourn for more than three days in order to be considered “in recess.” Pro forma sessions like the ones that took place the day before and two days after President Obama’s appointments, they say, mean that the Senate was not in recess.

    The Court’s decision could have significant implications with respect to the validity of Board decisions issued this year by the NLRB. Moreover, as of December 16, 2012, Member Hayes’s term expired and Board membership dropped to three, with only one member having been confirmed by the Senate. In fact, challenges to the Board’s attempt to function with only two confirmed members led to a Supreme Court decision in 2010 declaring the Board powerless to decide cases in such circumstances. On the other hand, if the Court finds President Obama’s recess appointments were valid, then the Board’s decisions (both by the pre- and post-December 16, 2012 Board) are more likely to stand, absent further appeals. This will be an important issue in 2013.  

    The D.C. Circuit’s decision in Noel Canning, however, may not be the end of the story. If the Seventh Circuit reaches a result contrary to the D.C. Circuit, the U.S. Supreme Court may be called upon to resolve the dispute.