What Does the Recess Appointment Ruling Mean for Your Company?

By Robyn Hagan Cain on January 29, 2013 | Last updated on March 21, 2019

Has your company been involved in a National Labor Relations Board (NLRB) decision in the last year? If so, that ruling may be in jeopardy thanks to last week’s recess appointment ruling.

In the unlikely event that you haven’t heard, the D.C. Circuit Court of Appeals ruled on Friday that recess appointments are limited to intercession recesses. Because three members of the NLRB over the last year were improper recess appointments, the Board lacked the requisite quorum. Without a quorum, the Board’s decisions are invalid.

Let’s briefly review this situation from start to finish, so you can decide what steps your company should take next.

Last year, President Obama placed two Democrats and one Republican on the National Labor Relations Board (NLRB) during a Senate recess. Noel Canning, a Washington state bottling company, challenged those appointments after losing a collective bargaining dispute with a labor union before the Board. The company argued that Obama violated the Constitution to fill the NLRB vacancies because the Senate was technically in session.

The D.C. Circuit agreed with Noel Canning. Since the Senate was in "pro forma" session at the relevant time, the appellate court ruled that the appointments were invalid from their inception. And, because the NLRB lacked a quorum of three members when it issued a decision in Noel Canning's case, that decision was invalid.

Before you celebrate (or lament) this ruling by burning the NLRB's ruling for/against your company, keep in mind that this decision will almost certainly be appealed. The Board issued more than 200 decisions last year. Re-hearing all of those matters would be a big problem for the administration, so you should expect either a request for en banc appeal or a Supreme Court petition.

Even if the ruling stands, your company will have to appeal to take advantage of it, The Washington Post explains. Regardless of where the case originated, you can challenge an NLRB ruling in the D.C. Circuit Court of Appeals. So if you want a second shot at making your case before the NLRB, prepare your appeal. In light of Friday's ruling, you should be able to overturn a 2012 NLRB ruling in the D.C. Circuit.

Related Resources:

Noel Canning v. NLRB (FindLaw's CaseLaw)
Recess Appointments: What's the Big Deal? (FindLaw's D.C. Circuit Blog)
The Ground Rules of the Appointments Game (FindLaw)