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Court Strikes Down “Recess” Appointments to the NLRB; Board Lacks Quorum

Labor & Employment Law Alert

The U.S. Court of Appeals for the District of Columbia Circuit decided today that three of President Obama's recent appointments to the National Labor Relations Board ("Board") were invalid and as a result, the Board lacked the necessary quorum to make decisions. Canning v. NLRB (D.C. Cir. January 25, 2013).

The U.S. Constitution provides that presidential appointments, like those to the Board, must be approved by the U.S. Senate. The Constitution also gives the President of the United States the power to make so-called "recess appointments" when the Senate is not in session. President Obama invoked this latter power when he appointed three people to the Board on January 4, 2012. The Senate was operating that day pursuant to a unanimous consent agreement, but that agreement stated that "no business [would be] conducted" while the Senate was operating under the agreement.

Strictly construing the language of the Constitution, the D.C. Circuit held that, because the Senate had been operating under the agreement on January 4, 2012, it had not been in recess between sessions and therefore, President Obama did not have authority to make a recess appointment at that time.

The court also held that the appointments were invalid because the vacancies had not commenced during a true recess. In doing so, the court rejected the Board's argument that the President of the United States has authority to make recess appointments to fill vacancies that exist during Senate recesses, even if they first occurred before a particular recess commenced. Two of the vacancies had existed for many months.

The Board is expected to ask for reconsideration before a larger group of the court's judges and/or seek review before the U.S. Supreme Court. If the D.C. Circuit's decision stands, cases decided by the Board while it lacked a quorum may have to be re-decided when valid appointments to the Board are made. This may include many of the Board's more controversial decisions issued during the past year, which have expanded rights of employees and unions. The court made no comment about the impact of its decision on other cases.

For more information on this decision and other issues concerning the NLRB, contact David Kern at (414) 277-5653 / [email protected]John Klages at (312) 715-5060 / [email protected]Fred Gants at (608) 283-2618 / [email protected], or your Quarles & Brady attorney.

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