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NLRB recess appointments challenge now underway

April 25th, 2013  |  David Stephanides

On Thursday, April 25, the NLRB filed its Petition for Certiorari in the Noel Canning case. This highly anticipated petition presents the Court with two questions:

1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the senate, or is instead limited to recesses that occur between enumerated sessions of the senate; and

2. Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

The NLRB currently has three members of five members. Chairman Pearce, a Democrat, was appointed by the President and confirmed in 2010. However, the two other current members, Robert Griffin, Jr. and Sharon Block, were the ostensible “recess appointments” made in January 2012 to head off a confirmation battle with the Senate. Those two appointments, made at a time when the Senate was arguably not in recess but in “pro forma” sessions, were found to be unlawful in Noel Canning.  As a consequence, the D.C. Circuit ruled that the Board did not have a quorum and so could not lawfully act.

The Noel Canning reasoning strikes at the validity of many other Board decisions. If the recess appointments in question are not counted toward a quorum, then under the Court’s New Process Steel case, the decisions since those appointments would be invalid because the five-seat board may not delegate its authority to a panel with fewer than three members. The Court now will effectively determine the validity of all NLRB decisions made by the Board after those recess appointments were made.

It is likely too late for the Court to act on the petition during the current Term.  Once granted cert, which is expected, the case would be heard during the Court’s next Term. Stay tuned.

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