California Labor &
Employment Law Blog

Jan. 25 2013

Court Declares Obama’s Recess Appointments to the NLRB Unconstitutional

Topics: Court Decisions, Personnel Policies and Procedures, Social Media, Union-Management Relations

As readers of this blog know, over the last year the NLRB has issued a number of decisions unfavorable to non-unionized employers, including decisions relating to at-will employment policies, social media policies and related terminations, and arbitration policies.  Some of these decisions were made by an NLRB Board, comprised largely of members appointed by President Obama as recess appointments in January 2012.  This means that the members were not confirmed by the Senate as typically required.  Senate Republicans refused to confirm President Obama's NLRB appointments at the time, so President Obama decided to get around the Republicans' obstacle by exercising a right to appoint people to fill vacancies in government agencies during a tiime when Senate approval cannot be obtained due to the Senate being in recess.  A legal challenge was mounted to the President's recess appointments to the NLRB on the ground that the Senate was not really in recess at the time these appointments were made, and thus the appointments are unconstitutional.  Today, the D.C. Circuit Court of Appeals agreed.  In Noel Canning v. NLRB, the Court held that "recess" means the period of time during which the Senate is formally adjourned following a two-year session.  It does not mean any period of time when the Senate is not in session for one or more days (such as was the case last January when the President made the "recess" appointments).  As such, the Court held that the NLRB recess appointments were unconstitutional.  This is hugely significant given that the NLRB needs at least three members to act, and three of the four members of the NLRB in 2012 were recess appointments--likely rendering invalid all NLRB decisions issued during this time.

It is anticipated that the D.C. Circuit decision will be appealed to the United States Supreme Court.  We will post developments here.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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