US Supreme Court to Review Noel Canning, Scope of President's Recess Appointment Authority | Practical Law

US Supreme Court to Review Noel Canning, Scope of President's Recess Appointment Authority | Practical Law

The US Supreme Court granted the National Labor Relations Board's (NLRB) petition for certiorari in NLRB v. Noel Canning, agreeing to consider whether President Obama's recess appointments to the NLRB were valid.

US Supreme Court to Review Noel Canning, Scope of President's Recess Appointment Authority

by PLC Labor & Employment
Published on 24 Jun 2013 • USA (National/Federal)
The US Supreme Court granted the National Labor Relations Board's (NLRB) petition for certiorari in NLRB v. Noel Canning, agreeing to consider whether President Obama's recess appointments to the NLRB were valid.
On June 24, 2013, the US Supreme Court granted the NLRB's petition for certiorari in NLRB v. Noel Canning, agreeing to consider whether President Obama's recess appointments to the panel (Board) heading the NLRB's judicial functions and union election processes were valid under the US Constitution (see Legal Update, DC Circuit Rules NLRB Recess Appointments Were Unconstitutional; Enforceability of All Recess Appointees' Decisions in Doubt and Article, The Impact of Noel Canning v. NLRB: Expert Q&A). In addition to the questions posed in the petition, the Court directed the parties to brief and argue whether the President's recess-appointment power may be exercised when the US Senate is convening every three days in pro forma sessions.
Employers should expect very little to change at the NLRB. The NLRB has publicly noted its disagreement with the US Court of Appeals for the District of Columbia's analysis in Noel Canning and in the Board's subsequent decisions, summarily rejected parties' arguments that:
  • The current intrasession recess appointees, Members Block and Griffin, are not validly appointed.
  • The NLRB lacks the required three-member quorum to issue unfair labor practice (ULP) and representation case decisions.
Employers can expect that the Board, as currently constituted:
  • Will continue to issue decisions in ULP and representation proceedings despite Noel Canning, until:
    • Chairman Pearce's term expires on August 27, 2013, eliminating the NLRA-required three member quorum, assuming the intrasession recess appointments were valid (see the NLRB's website for historical and current Board member compositions and appointment expiration dates);
    • the Senate confirms President Obama's nominations of prospective Board members (see the US Senate Committee on Health Education Labor & Pensions website for details about the nominations pending from May 22, 2013); or
    • President Obama makes additional recess appointments to the Board.
  • Will change the pro forma footnote about Noel Canning that it includes in its decisions to reflect that the NLRB successfully petitioned for Noel Canning to be reviewed by the Supreme Court.
Employers harmed by Board decisions on or after January 4, 2012 (or perhaps earlier (see Legal Update, Third Circuit Joins DC Circuit in Condemning NLRB Intrasession Recess Appointments; Casts Doubt on Validity of Other Recess Appointees Decisions)) by recess appointees should:
  • Continue considering the DC Circuit the optimal place to petition for circuit court review of NLRB recess appointee decisions.
  • Consider:
    • bringing the DC Circuit's Noel Canning decision and the Supreme Court's decision to grant certiorari to the attention of any other circuit court to which they appeal Board decisions by intrasession recess appointees; and
    • arguing that the circuit court lacks jurisdiction to enforce the Board's order that was issued without a proper quorum.
  • Consider requesting that circuit courts hold Board matters involving intrasession recess appointees in abeyance until the Supreme Court rules in Noel Canning.
Although the DC Circuit's Noel Canning opinion focused on President Obama's recess appointments to the NLRB, the Supreme Court's decision will likely also determine the constitutionality of:
  • Current intrasession recess appointments to other federal agencies, including that of Richard Cordray to the Consumer Financial Protection Bureau.
  • Future intrasession recess appointments to all federal agencies.