D.C. Circuit invalidates NLRB recess appointments as unconstitutional; Chamber provides memo to members on ruling
On behalf of its member, Noel Canning Corporation, the U.S. Chamber of Commerce's lawyers briefed and argued this constitutional challenge to the authority of the National Labor Relations Board (NLRB) to adjudicate charges absent a three-member quorum. The Chamber sought a swift and decisive ruling whether the president’s “recess” appointments of Sharon Block, Terence F. Flynn, and Richard Griffin to the NLRB unlawfully circumvented the Senate’s constitutional power to provide advice and consent to the appointment of executive branch officers. According to the Chamber’s legal briefing, the three recess appointments to the Board were not legally effective because the President made them when the Senate was in session, not in recess. Accordingly, the Board lacks the statutorily required quorum of at least three members to adjudicate disputes and issue rules. According to the Chamber, shoehorning these nominees into office in this controversial way has thrown the legal validity of every decision of the Board into question, adding even more uncertainty to the economic climate.
All U.S. Supreme Court filings for this case may be found here.
In a unanimous decision, the D.C. Circuit agreed with the U.S. Chamber's lawyers, ruling that that the NLRB "could not lawfully act, as it did not have a quorum." According to the Court, the NLRB lacked a quorum because the purported recess appointments were unconstitutional.
U.S. Chamber of Commerce President and CEO Thomas J. Donohue issued the following statement regarding the D.C. Circuit’s opinion in Noel Canning v. NLRB invalidating the President’s recess appointments to the National Labor Relations Board (NLRB):
"We are pleased with the D.C. Circuit’s ruling that the President’s recess appointments to the NLRB were unconstitutional. We warned last year that by appointing these members to the NLRB in such a controversial fashion, the President placed a cloud of uncertainty over the agency and its work. The D.C. Circuit’s historic decision has confirmed our concerns. The U.S. Chamber has been proud to stand with our member Noel Canning from the beginning, and they will continue to enjoy our full support and backing."
In the wake of the NLRB's statement that, despite the ruling, the Agency will continue with business as usual, the U.S. Chamber's General Counsel, Lily Fu Claffee, and Chief Counsel for Regulatory Litigation, Rachel Brand, distributed guidance to the Chamber's members on the implications of the ruling for employers, and provided suggestions for how employers might protect their legal rights in the courts.
Motion to intervene filed 3/15/2012. Reply to NLRB's Opposition to Intervention filed 4/23/2012. Court response to intervention motion issued 6/21/2012. Opening brief of Petitioners filed 9/19/12. Senators' amicus brief, Speaker Boehner's amicus brief, and Landmark Legal Foundation's amicus brief supporting Noel Canning, et al. filed 9/26/12. Petitioner and Intervenors' Motion to Consolidate Oral Argument filed 10/11/12. NLRB answering brief filed 10/26/12. Decided 1/25/13.
Judges in this case: Sentelle, Chief Judge; Henderson and Griffith, Circuit Judges.