Supreme Court Rules
Recess Appointments to NLRB Unconstitutional

In a unanimous judgment issued this morning after months of deliberation, the Supreme Court of the United States upheld an earlier ruling by a lower court that President Obama’s 2012 appointees to the National Labor Relations Board (NLRB) made while the Senate was in pro forma session circumvented the Senate confirmation process and were serving unconstitutionally. IEC, as part of the Coalition for a Democratic Workplace, submitted an amicus brief to the Supreme Court in the case.
In its deliberations, the Court was required to decide the extent of the President’s recess-appointment power, particularly whether it may be exercised during an inter-session recess or only between enumerated sessions of the Senate; whether the President may fill vacancies that exist during a recess or only vacancies that first arose during that recess; and whether pro forma sessions constitute a “recess” as the Administration claimed to justify its appointments to the NLRB. The Court held that the President can fill any existing vacancy (preexisting or newly arising) during an intra or inter-session recess of sufficient length, but held that less than 10 days is presumptively too short to fall within the recess appointments clause of the U.S. Constitution. Justice Stephen Breyer, writing for the court, concluded that the Senate’s pro forma sessions did not constitute a recess – therefore, the appointments President Obama made to the Board during a 3-day pro forma session in 2012 were invalid.
The Court’s ruling in NLRB v. Noel Canning today means that the NLRB will be forced to revisit the hundreds of case decisions unlawfully issued by the unconstitutionally serving members of the Board between January 2012 and July 2013. The Board may even have to reconsider numerous other officials acts, such as appointments of Regional Directors and other Board officials, that were issued by those members. IEC employers who have faced adjudication by the Board or have had labor disputes decided based on case precedent established during this time period may need to re-litigate matters, potentially costing additional legal fees. There is no guarantee that the NLRB will reach the same decisions in each case, even with a Democratic majority still in place as four of the five Members currently serving terms are new to the Board.
At the same time, the Court’s decision will have profound political implications for future use of the recess appointments power. The House of Representatives, which is currently under a Republican majority, manages the Senate calendar. The House can force the Senate to hold few recesses longer than 10 days, thereby blocking the President’s ability to make additional recess appointments to positions otherwise requiring Senate confirmation.
IEC is committed to providing our members with appropriate guidance to respond to the potential impact of the Court’s decision on decided or pending cases with the National Labor Relations Board. We will assess the legal implications of NLRB v. Noel Canning and communicate more information as it becomes available.  
Immediate questions can be directed to Alexis Moch, IEC National's Vice President of Government Affairs, at or (703) 650-0054.
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