After months of anticipation, the U.S. Supreme Court issued a decision in Noel Canning v. NLRB (No. 12-1281) in the final days of its spring 2014 session. In its opinion, the court unanimously agreed that President Obama unconstitutionally bypassed the U.S. Senate with the Jan. 4, 2012, “recess appointments” of Sharon Block, Richard Griffin and Terrence Flynn to fill vacancies at the National Labor Relations Board (NLRB).

Not only did the president make these appointments during an ongoing session of the Senate, but they also occurred within a three-day intrasession period between “pro-forma” meetings of the Senate, and therefore not during recess. Ironically, the use of these perfunctory sessions to block controversial appointments was pioneered by Harry Reid and Senate democrats during the second term of George W. Bush, but President Obama was the first to challenge the tactic directly.

In effect, the NLRB lacked a properly appointed three-member quorum from January 2012 until the resolution of a Senate confirmation impasse in mid-2013, thus negating every decision made under these board members. The Supreme Court’s decision also affirms the right of the Senate to define its proceedings and recess according to its own rules.

More than 700 published and unpublished decisions issued by the quorum-less NLRB from January 2012 until August 2013 have been rendered invalid under the court’s decision. Among those 700 cases is the decision that the Noel Canning Corp., a bottling company based in Yakama, Wash., was guilty of certain unfair labor practices. Noel Canning initially appealed the NLRB decision to the U.S. Court of Appeals for the D.C. Circuit. The Coalition for a Democratic Workplace (led by Associated Builders and Contractors) intervened in the case, and last January, the circuit court ruled that the president violated the Constitution when he bypassed the Senate to fill the NLRB vacancies.

According to the NLRB’s Office of Public Affairs, more than 100 legal challenges to the January 2012 recess-appointee board are pending. Many of these cases likely will be returned to the reconstituted NLRB for reconsideration. The impact to decisions made by regional directors appointed during that time is uncertain. Exactly how, or if, the board will decide to notify parties whose decisions will be impacted also remains unclear.

In a win for the business community, the possible backlog of cases the NLRB may be facing could result in the delay of any egregious, job-killing rules. Furthermore, the fact that there is no statute of limitations on how long someone can appeal to federal circuit courts could significantly amplify the repercussions from this decision.

In a press statement issued on the same day of the Supreme Court decision, NLRB Chairman Mark Pearce indicated that the board respectfully disagrees with the court and will continue to operate with recess appointees Block and Griffin despite the ruling of the Court of Appeals.

Beyond the direct impact of Noel Canning on the NLRB and the broader debate over presidential appointments, the decision serves as a stinging rebuke of Obama’s executive overreach at a time when his administration has become increasingly cavalier in asserting the power of the pen. While additional lawsuits challenging recent presidential actions on environmental regulations, immigration enforcement and health care law implementation face an uncertain fate, the court’s unanimous decision to rein in the White House provides a powerful symbolic victory for federal checks and balances.


Kristen Swearingen is senior director of legislative affairs for Associated Builders and Contractors. For more information, email swearingen@abc.org.