On June 24, 2013, the U.S. Supreme Court granted review of Noel Canning, a D.C. Circuit Court case invalidating three recess appointments to the National Labor Relations Board (“Board”) made by President Obama. The lower court found that the Recess Appointments Clause, which allows the president to fill vacancies during recess without the advice and consent of Congress, only applies to the intersession break. The Third and Fourth Circuits have ruled similarly in NLRB v. New Vista Nursing and Rehabilitation and NLRB v. Enterprise Leasing Company Southeast, LLC, respectively.
There are three questions before the Supreme Court:
- whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is it instead limited to recesses that occur between full sessions of the Senate;
- whether the President’s recess-appointment power may be exercised to fill vacancies that continue during a recess, or is it limited to vacancies that first arose during that recess; and
- whether the President’s recess-appointment power may be exercised when the Senate is officially convening every three days in pro forma sessions but in fact, no one is attending the sessions.
Argument on these questions will be heard next term, which starts in October. Meanwhile, the Obama Administration is trying to fix things. As of yesterday, the Administration’s five nominations have been approved. Until now, even though the legitimacy of the Board was in dispute, the Board has been conducting business as usual. Now that the Board is properly constituted, the only remaining issue is if its prior actions will be upheld or overturned.
We will keep you apprised of any new developments.
Brody and Associates regularly advises its clients on union-related matters and provides union-free training. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.
