HR Management & Compliance

High court agrees to hear NLRB recess appointments case

The U.S. Supreme Court has agreed to hear an appeal in Noel Canning v. NLRB.

In the Noel Canning case, the U.S. Court of Appeals for the District of Columbia Circuit ruled that three of President Barack Obama’s so-called recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Without the three appointees, the Board lacked a necessary quorum to act. Thus, the D.C. Circuit’s ruling raised questions about the validity of hundreds of NLRB actions, including union-friendly decisions on social media, confidentiality rules, and off-duty employees’ access to workplaces.

The U.S. Constitution provides that the Senate must consent to the president’s nominees to federal agencies. The Constitution gives the president the authority to fill vacancies that “may happen” during the Senate’s recess that “shall expire at the end of the next session.”

The appeals court unanimously agreed that the Senate wasn’t in recess when President Obama made the appointments. A majority of the D.C. Circuit’s judges found that the vacancies did not “happen” during a recess, which further supports the conclusion that the appointments were unconstitutional. The 3rd Circuit also ruled that President Obama’s recess appointments were unconstitutional. NLRB v. Vista Nursing and Rehabilitation, No. 11-3440 (May 16, 2103).

Now, the Supreme Court will determine whether the recess appointments were constitutional.  The Court’s decision likely will provide more certainty regarding the scope of the president’s recess appointment power.  The Court should issue a decision in this case in 2014.

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