Justices Appear Skeptical of NLRB Recess Appointments

Author: David B. Weisenfeld, XpertHR Legal Editor

January 15, 2014

The Supreme Court heard oral arguments on Monday regarding whether three recess appointments to the National Labor Relations Board (NLRB) were constitutional in NLRB v. Noel Canning. The case is among the most significant of the Court's term because it could place hundreds of NLRB rulings in doubt.

The NLRB had found in 2012 that a Yakima, Washington Pepsi bottler (Noel Canning) had committed an unfair labor practice. The company challenged that finding on the grounds that three of the five labor board members held invalid appointments. The DC Circuit agreed, setting the stage for this Supreme Court showdown.

The dispute stems from President Obama's January 4, 2012 recess appointments of Sharon Block, Terence Flynn and Richard Griffin to the NLRB. The Board's membership had fallen to two members on the previous day due to expiring terms. Under the National Labor Relations Act, the NLRB cannot decide cases involving unfair labor practice charges without at least three members.

The case challenges a key practice employed by presidents (regardless of party affiliation) in filling vacancies during a Senate recess. But a lawyer representing the Republicans in the Senate, Miguel Estrada, told the Court that the appointments were illegal because the Senate was not in recess. Estrada said, "On each of the disputed days, the Senate was called to order and adjourned."

Solicitor General Donald B. Verrilli, Jr. began his argument by telling the Court that if these appointments were found invalid it would repudiate the constitutional legitimacy of thousands of appointments by presidents going back to George Washington.

But Justice Elena Kagan suggested the history did not necessarily aid the administration's cause. Noting that Congress used to recess for months in the nation's early years, Justice Kagan told Verrilli, "This is not the horse and buggy era anymore. There's no such thing truly as congressional absence anymore," she said. "And that makes me wonder whether we're dealing here with what's essentially a historic relic."

NLRB Decisions at Risk

Verrilli emphasized that the stakes were high, arguing that the NLRB was going to go dark without the appointments and that the Senate had stalled previous efforts to fill the vacancies. He also said there were many hundreds of board decisions "under a cloud" as a result of the DC Circuit's ruling last year for the employer in the case.

Justice Antonin Scalia was unmoved by Verrilli's arguments. Justice Scalia said, "If there is indeed this terrible emergency you're talking about, the President has the power to call them [the Senate] back."

Representing the employer, Noel J. Francisco told the Court, "The President may not be permitted to make an end run around the Senate's refusal to act." Alluding to the possible impact on the NLRB, Francisco noted that the Supreme Court has never shied away from enforcing the Constitution merely because it could have some impact on prior cases.

But Justice Ruth Bader Ginsburg told Francisco, "Your argument would destroy the recess clause" and leave it within the Senate's hands to abolish any and all recess appointments. Nonetheless, a majority of the Court appeared inclined to rule against the administration's position that it could bypass the Senate in this case.

A decision is expected before the end of the Supreme Court's term in June.