TBA Law Blog

Posted by: Christy Gibson on Jul 10, 2014

by Peter Robison*

On June 26, 2014, the U.S. Supreme Court issued a unanimous ruling in NLRB v. Noel Canning, affirming the decision of the U.S. Court of Appeals for the District of Columbia Circuit that held that President Barack Obama’s recess appointments to the National Labor Relations Board (Board or NLRB) were unconstitutional.[i] The decision is notable for two reasons. First, the unanimous ruling belies the fact that the justices were sharply divided as to the reasoning for the decision, with the two opinions representing the two competing approaches to questions of constitutional law. Secondly, although the Obama Administration lost the case, NLRB v. Noel Canning can actually be seen as a win for executive power, and both the short-term and long-term effects of the decision will probably be fairly limited.

The Board is composed of five members, and cannot take actions or issue decisions without a three-member quorum.On December 17, 2011, the U.S. Senate unanimously resolved to take a series of brief recesses, holding only brief pro forma sessions every Tuesday and Friday until it returned for business on January 23, 2012. On January 3, 2012, the term of NLRB member Craig Becker had expired, leaving the Board with only two confirmed members. President Obama had previously nominated three additional members to the Board, but the Senate had not voted on the members’ confirmations before it began the series of recesses. In order to avoid a functional shut-down of the NLRB, President Obama invoked the Recess Appointments Clause and appointed all three members to the Board on January 4, 2012.

This case arose from a labor relations dispute in which the Board found Noel Canning, a Pepsi-Cola distributor from Washington state, unlawfully refused to execute a bargaining agreement with a labor union.[ii] The composition of the Board at the time of its decision in Noel Canning on February 8, 2012, included the three recess appointees. Noel Canning appealed the Board’s decision to the D.C. Circuit on the grounds that the composition of the Board was inadequate because it lacked three lawfully appointed members – the three recess appointments were not valid appointments because the Senate was not in recess at the time President Obama invoked the Recess Appointment Clause.[iii]

The D.C. Circuit agreed with the distributor, holding the Recess Appointment Clause only applied to inter-session recesses (occurring between formal sessions of Congress), not to intra-session recesses (occurring within a formal session of Congress). As the three members appointed on January 4, 2012, were appointed in an intra-session recess, the D.C. Court ruled that their appointments invalid. The D.C. Circuit additionally held the phrase “vacancies that may happen during the recess”, contained in the Recess Appointments Clause, only applied to vacancies that come into existence during the recess. The three members appointed on January 4 had filled vacancies that had arisen prior to the recess, and the D.C. Circuit found this was an additional reason their appointments were invalid. The Obama Administration appealed the decision, and the Supreme Court granted certiorari to address the D.C. Circuit’s interpretation of the Recess Appointment Clause and to address the distributor’s original argument regarding whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

The Court unanimously affirmed the D.C. Circuit’s ruling, but the reasoning for the ruling was a 5-4 split. Writing for the majority, Justice Stephen Breyer held the appointments of the three Board members were invalid because the Senate’s pro forma sessions occurred with sufficient regularity that the days in between did not constitute intra-session recesses. However, the majority went on to reject the D.C. Circuit’s narrow interpretation of the Recess Appointment Clause. Taking into account the historical practice of both Congress and the White House, the majority held the Clause applied equally to inter-session recesses and intra-session recesses. The majority additionally held the Clause could be invoked not just for vacancies that arose during the recess, but also for vacancies that arose prior to the recess. The majority went on to rule that the Recess Appointment Clause does not apply to any recess of less than 10 days.

Although the four-justice opinion written by Justice Antonin Scalia was a concurrence, it reads like a dissent. The concurring justices would have followed the D.C. Circuit’s narrow interpretation of the Recess Appointment Clause, limiting its application only to vacancies that arose during (not prior to) the recess between the formal sessions of Congress. Justice Scalia criticized the majority’s acceptance of what he called “the adverse-possession theory of executive power,” and decried the reliance on historical practice over the text of the Clause itself. However, this ongoing philosophical debate may be more interesting to the constitutional scholars than to litigants involved in NLRB decisions; both the majority and the concurrence essentially agreed on the role of the text and its original meaning.

Even though the Court sided with the distributor in this case, the Obama Administration has several reasons to breathe a sigh of relief. The executive power to make recess appointments remains largely intact, and the majority opinion’s 10-day rule is unlikely to greatly hamper a president’s ability to fill vacancies, particularly after Democratic Senate majority ended the filibuster for executive agency appointments. The Court’s 10-day rule will also enable the Obama Administration to avoid a similar result in two other cases that are currently pending before the Court arising from decisions by the NLRB while Craig Becker was a member of the Board. Becker himself was a recess appointee, but the recess in question was two weeks long, which meets the newly-established 10-day threshold. Thus, those two other cases will probably avoid the fate of the decision in the Noel Canning case.

This still leaves the Board with the dilemma of what to do with the apparently invalid decisions issued during the 19-month period between January 3, 2012, and early August 2013, when four new members were confirmed by the Senate. All of those decisions are presumably nullified under the Supreme Court’s previous decision, New Process Steel,[iv] and the decisions include a number of high-profile issues such as employee social media use (Costco Wholesale Corp., 358 NLRB No. 106 (2012); Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012)), employer confidentiality rules (Banner Health System, 358 NLRB No. 93 (2012)), off-duty employee access to employer property (Sodexo America LLC, 358 NLRB No. 79 (2012); Marriot Int’l, Inc., 359 NLRB No. 8 (2012)), dues check-offs (WKYC-TV, Gannet Co., 359 NLRB No. 30 (2012)), and employee discipline (Alan Ritchey, Inc., 359 NLRB No. 40 (2012)). Some of these cases (most notably WKYC-TV, Inc.) reversed decades of precedent, and their invalidation leaves the outcome of those cases and their progeny in limbo.

However, given the current make-up of the NLRB, it seems unlikely that the Board will issue significantly different rulings in these cases. The NRLB can exercise its authority under the Administrative Procedures Act to take “official notice” of the record compiled in its not invalidated adjudications to facilitate and expedite the rehearing process. Unless the parties have discovered new information or developed some new arguments, the outcomes are likely to remain the same. Consequently, the practical application of the Supreme Court’s decision in NLRB v. Noel Canning will be more of a logistical backlog than an actual shift in the presidential use of recess appointments or NLRB precedent.


*Peter Robison is an employment attorney with Cornelius & Collins, LLP in Nashville. He is a 2008 graduate of Vanderbilt Law School. In addition to employment law, Mr. Robison’s practice areas include general civil litigation and probate administration. He may be reached at (615)244-1440 or pcrobison@cornelius-collins.com.

[i]Nat’l Labor Relations Bd. v. Noel Canning, 573 U.S. ___ (2014).

[ii]Noel Canning, 358 NLRB No. 4 (2012).

[iii]See29 U.S.C. § 153(a) (providing for a three-member quorum); New Process Steel, L.P. v. NLRB, 560 U.S. 674, 687-88 (2010) (holding the Board cannot exercise its powers in the absence of a lawfully appointed quorum)

[iv]New Process Steel, L.P., 560 U.S. at 687-88.