Supreme Court To Review Constitutionality Of Recess Appointments To The NLRB

Garrett Wozniak
Garrett Wozniak
07/05/2013

As the recent Supreme Court term came to an end, employers were greeted with a couple of favorable decisions.  On June 24th, the Court held that a “but-for” standard applies in Title VII retaliation cases and that to be a “supervisor” under Title VII, an employee must have the power to implement tangible employment actions.

That same day, the Supreme Court agreed to review the D.C. Circuit’s opinion in Noel Canning Div. of Noel Corp. v. NLRB, 705 F.3d 490 (D.C. 2013).  In Noel Canning, the D.C. Circuit held that the recess appointments President Obama made to the National Labor Relations Board in January 2012 were unconstitutional.  In support of its decision, the D.C. Court determined that recess appointments can only be made between Senate Sessions for the purpose of filling vacancies that arise during that period.

The January 2013 decision concluded that the NLRB did not have a quorum to decide an unfair labor practice case then before the Board because two of the three members of the NLRB panel had been the product of recess appointments.  If the appointments are invalid, the panel cannot attain the requisite three members necessary for action.  In 2010, the Supreme Court held that NLRB panels must have a minimum of three members.

In agreeing to review the Noel Canning decision, the Supreme Court will determine when the President can make recess appointments.  The case has far-reaching implications concerning the validity of NLRB decisions made by members appointed during a recess.  If the Court concludes that the appointments are valid, then NLRB decisions in the intervening period will be valid.  If, however, the Court concludes that the appointments are unconstitutional, then the decisions will be invalid as made by a panel comprised of fewer than three members.

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