Second Court Finds NLRB Appointees, Subsequent Board Actions Unconstitutional

On Thursday, a second appeals court joined the D.C. Circuit in ruling that President Obama’s recess appointments to the National Labor Relations Board (NLRB) violated the Recess Appointments Clause of the Constitution. In its 2-1 decision on NLRB v. New Vista Nursing & Rehabilitation, the Third Circuit Court of Appeals held that the presidential recess appointment power is limited to breaks between sessions of Congress – not when the Senate is meeting in a pro forma session as it was at the time President Obama appointed three members to the Board in January of 2012. Additionally, it found that some actions taken by the illegitimate Board were also invalid.

In this most recent case, the NLRB unsuccessfully argued that a recess “occurs any time members of the Senate do not have a duty to attend, the Senate chamber is empty, and the Senate is unavailable to receive communications from the president.” The Court rejected that argument, stating that, by the NLRB’s broad definition, “if the Senate refused to confirm a president's nominees,” then the President could effectively circumvent the Senate’s constitutional responsibility to advise and consent “simply by waiting until senators go home for the evening.”

The NLRB is already appealing an earlier ruling by the D.C. Circuit Court in Noel Canning v. NLRB that held President Obama’s appointments to the Board unconstitutional, and is asking the Supreme Court to review and reverse that decision.  Despite Noel Canning, the NLRB has continued to issue orders and take actions requiring a quorum of confirmed members.  If the Supreme Court ultimately finds that the Board does not have authority to do so, IEC members already faced with potential litigation as a result of case decisions may need to relitigate matters, which could mean significant costs to their companies.

In April, the House of Representatives passed the Preventing Greater Uncertainty in Labor-Management Relations Act, which would prevent the NLRB from taking any further actions until the Supreme Court rules on Noel Canning or new members are confirmed by the Senate. An identical companion bill, S. 850, was recently introduced by Senator Lamar Alexander (R-TN). IEC Members are encouraged to send a letter of support for the bill to the Senate via