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Legal: The labor board and its lack of authority to rule – what's next?

Jeff Jones
Thursday, May 2, 2013

The U.S. Supreme Court ruled during 2010 that the National Labor Relations Board (NLRB or Board) cannot act without a quorum of three members. New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). In a decision issued on Jan. 25, the United States Court of Appeals for the District of Columbia Circuit has taken the issue one step further and ruled that the purported appointments of the last three members of the board were invalid under the Recess Appointments Clause of the U.S. Constitution. Noel Canning v. NLRB.

Members of the board are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution, which provides that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… particular officers of the United States…” that the purported appointments of the three members were clearly not made by and with the advice and consent of the Senate. But the “Recess Appointments Clause” of the Constitution provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate by granting Commissions which shall expire at the End of their next Session.” The case turned on whether the Senate was in recess at the time of the appointments, and on whether the vacancies happened during the recess of the Senate.

The court found that the NLRB’s interpretation of “the Recess” would defeat the purpose of the Framers of the Constitution and the careful separation of power structure reflected in the Appointments Clause, and that such appointment structure used the term “Recess” to refer only to the Recess between Sessions, when the Senate simply cannot provide advice and consent. The court found that the appointment structure would have been turned upside down if the president could make appointments any time the Senate so much as broke for lunch.

The court further found the appointments invalid as the vacancies did not “happen” during “the Recess.” That is, it is insufficient that the qualifying vacancy “exists” during the recess; it must actually “arise” during the recess. Thus, the president may only make recess appointments to fill vacancies that arise during the recess. Because none of the three appointments were valid, the NLRB lacked a quorum and the NLRB decision was vacated.

Note: The issue in the Noel Canning case will likely end up in the U.S. Supreme Court. The President will argue that he is unable to fulfill his chief constitutional obligation to “take care that the laws be faithfully executed,” or that the interpretation could even pose national security risks. The court answered this issue by stating that if Congress wished to alleviate such problems, it could certainly create Board members whose service extended until the qualification of the successor, or provide for action by less than the current quorum, or deal with the problems in some other fashion, noting that the executive branch has provided for the temporary filling of a vacancy by statute allowing an “acting officer” to perform all the duties and exercise all the powers of the office.

The case involves a classic dispute concerning the “separation of powers” between the executive, legislative, and judicial branches of our government. In the Noel Canning case, the District of Columbia Circuit ruled that the executive branch exceeded its constitutional authority.

The NLRB is allowed to issue decisions only with a quorum of at least three members and the Noel Canning decision leaves the Board with only one validly appointed member. The court’s ruling not only invalidate the NLRB’s ruling in Noel Canning, but hundreds of other NLRB decisions issued by the Board for more than a year.

The current issues could be resolved via a decision by the U.S. Supreme Court, or by the executive and legislative branches reaching agreement on new and valid appointments to the NLRB.

As an agency, the NLRB can still perform many functions. The General Counsel of the NLRB has been delegated authority to take many actions, including the seeking of temporary court injunctions, and the many NLRB regional offices across the country will continue to operate, including holding elections, issuing complaints, and litigating cases before administrative law judges. But any appeal of such matters to the Board in Washington, and enforcement of such decisions by the courts may be postponed until a quorum at the Board is established.

Notably, White House Press Secretary Jay Carney has announced that the ruling would not affect the Board’s operations, referring other questions to the Justice Department. NLRB Chairman Mark Pearce has announced the Board would keep conducting its business, noting that the rule applies only to a single case in a single circuit, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. Thus, one interpretation of the current situation is that the Board will continue to carry out its normal functions, and simply ignore the ruling. The issue is more complex than that, however, as virtually all NLRB final rulings can be appealed to the District of Columbia Circuit, the court that issued the Noel Canning ruling. Therefore, if the ruling stands, every NLRB final ruling could be set aside by an appeal to the District of Columbia Circuit, at least until the NLRB quorum is legally established.

Jeffrey G. Jones is a regional managing member for Wimberly Lawson Wright Daves & Jones PLLC. He can be reached at

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