Recess Appointments Litigation Resource Page
On January 25, 2013, the U.S. Court of Appeals for the D.C. Circuit invalidated the President's three January 4, 2012 recess appointments to the National Labor Relations Board ("NLRB"). The D.C. Circuit ruled that the three “recess” appointments to the NLRB are invalid because they exceeded the scope of the President's authority under the Recess Appointments Clause of the U.S. Constitution. The U.S. Chamber, which stood by its member, the Noel Canning Corporation, to brief, argue, and win the case before the D.C. Circuit, has announced that its litigation team will continue to represent the company now that the case has reached the U.S. Supreme Court.
This page will continually be updated to provide information to those businesses that are affected by the D.C. Circuit's decision. Employers that are aware of cases or developments that should be added to this page are encouraged to contact the U.S. Chamber's National Chamber Litigation Center, the litigation arm of the Chamber, at firstname.lastname@example.org.
Recent Case Developments
On July 17, 2013, the Fourth Circuit Court of Appeals held the recess appointments of Sharon Block, Richard Griffin, and Terence Flynn were unconstitutional.
The U.S. Supreme Court has agreed to decide the constitutionality of the "recess" appointments during the Court's 2013-2014 Term. The announcement comes after the federal government filed a cert. petition on April 25, 2013, asking the U.S. Supreme Court to overturn the D.C. Circuit's Noel Canning decision. On May 23, 2013, the U.S. Chamber announced that its litigation team - including the Chamber's own litigation arm, NCLC, as well as constitutional lawyers from the law firm Jones Day LLP - would represent the Noel Canning Corporation before the U.S. Supreme Court, and asked the Court to uphold the D.C. Circuit's decision invalidating the recess appointments.
By the Numbers: NLRB Decisions From August 27, 2011 to Present
As of July 17, 2013, the NLRB has issued 318 decisions since the D.C. Circuit invalidated the recess appointments in Noel Canning. At least 1,302 published and unpublished decisions, dating back to August 27, 2011, are now suspect. A list of these decisions, with hyperlinks to the rulings and to the NLRB.gov docket sheets, is available here.
The current NLRB has been among the most aggressive and activist in the history of the Board. The Chamber's blog, FreeEnterprise.com, rounded up some of the most egregious recent NLRB rulings - all of which are suspect under the Noel Canning decision.
Health Bridge Management: Required the operator of nursing homes and rehabilitation hospitals to rehire 600 employees who allegedly vandalized and damaged medical supplies and equipment, endangering elderly patients.
Costco Wholesale Corp.: Invalidated a policy prohibiting employees from making defamatory statements about the company.
Banner Health System: Struck down a blanket rule prohibiting employees from discussing ongoing investigations of misconduct with other employees.
J.W. Marriott Los Angeles at LA Live: Found that an off-duty employee access rule violated the National Labor Relations Act (NLRA) when it prohibited employees from remaining in the building more than 15 minutes after their shifts ended.
Kent Hospital: Eased the type of financial information a union must provide to nonmember objectors, and ruled that a union’s germane lobbying expenses were chargeable to nonmembers even if conducted by another unit in another state.
WKYC-TV, Gannet Co.: Ruled that an employer must continue to deduct union dues from employees’ paychecks after the expiration of a collective bargaining agreement.
Piedmont Gardens: Reversed a decision holding that employee witness statements made to the employer in a grievance case were exempt from being disclosed to a union.
Supply Technologies, LLC: Struck down a non-union employer’s mandatory alternative dispute resolution program because it interferes with an employee’s right to file a claim under the NLRA.
Hispanics United of Buffalo: Ruled that a non-union employer’s firing of employees for posting harassing Facebook comments violated the NLRA.
D.R. Horton: Ruled that employment agreements requiring arbitration of employment claims are unlawful under the NLRA, paving the way for employee class action lawsuits.
Fresenius: Held that the employer violated the NLRA when it terminated an employee for writing vulgar, offensive, and threatening statements on materials left in a break room and subsequently lied during the employer’s investigation of the incident.
Recess Appointment Cases Pending Certioari
Recess Appointment Challenges in the Federal Appeals Courts
Dozens of NRLB decisions have been appealed to federal appeals courts, raising the "recess appointment" argument. Below is a list of federal appellate cases known to raise the recess appointment issue. Where available, the list links to relevant case filings raising the recess appointment issue.
Banner Health System v. NLRB (12-1359) -- Case held in abeyance (1/25/2013).
Aerotek v. NLRB (12-1271) -- Case held in abeyance pending settlement (12/7/2012).
Alden Leeds, Inc. v. NLRB (11-1267, 11-1296) -- Court ordered parties to file briefs addressing appointments issue (1/30/2013). Briefs due 03/01/2013.
Case held in abeyance per Noel Canning (2/19/2013).
Alpha Appalachia Holdings, Inc. v. NLRB (12-1400,12-1401,12-1419) -- Cases held in abeyance per Noel Canning (1/25/2013).
American Baptist Homes v. NLRB (13-1011) -- Case held in abeyance per Noel Canning (1/25/2013).
Ampersand Publishing, LLC v. NLRB (12-1449,12-1472,12-1488) -- Cases held in abeyance per Noel Canning (1/25/2013).
Bread of Life, LLC v. NLRB (12-1469, 12-1484) -- Cases held in abeyance per Noel Canning (1/25/2013).
Champlin Shores Assisted Living v. NLRB (13-1039) -- Case held in abeyance per Noel Canning (2/27/2013).
Costco Wholesale Corp. v. NLRB (12-1389,12-1436) -- Cases held in abeyance per Noel Canning (1/25/2013).
Daycon Products Company v. NLRB (11-1342) -- Petition for Cert. filed with SCOTUS 6/13/2013.
DIRECTV, Inc. v. NLRB (11-1273) -- Case held in abeyance per Noel Canning (2/19/2013).
Embarq Corp. v. NLRB (12-1385, 12-1414) -- Cases held in abeyance per Noel Canning (1/25/2013).
Fort Dearborn Co. v. NLRB (12-1430, 12-1438) -- Cases held in abeyance per Noel Canning (1/25/2013).
Fred Meyer Store v. NLRB (12-1486) -- Cases held in abeyance per Noel Canning (1/25/2013).
Fresenius USA Manufacturing v. NLRB (12-1387, 12-1415) -- Cases held in abeyance per Noel Canning (1/25/2013).
General Die Casters, Inc. v. NLRB (13-1021) -- Case held in abeyance per Noel Canning (2/7/2013).
Hotel Bel-Air v. NLRB (12-1386,12-1404) -- Cases held in abeyance per Noel Canning (1/25/2013).
Hyundai America Shipping Agency v. NLRB (11-1351, 11-1413) -- Briefing complete. Oral argument held 2/5/2013.
In re Jeanette Geary (13-1029) (known as Kent Hospital before NLRB) -- Petition for a Writ of Mandamus or Writ of Prohibition filed 2/11/13. NLRB ordered to file response (2/22/2013). NLRB’s Response Brief is due March 25, 2013, Petitioner’s Reply Brief filed 4/10/2013. Consolidation order issued 5/7/2013. Consolidated brief of the petitioners filed 6/14/2013.
IronTiger Logistics, Inc. v. NLRB (12-1468,13-1001) -- Cases held in abeyance per Noel Canning (1/25/2013).
KAG West v. NLRB (12-1391, 12-1446) -- Case held in abeyance per Noel Canning (1/25/2013).
Keck Hospital of USC v. NLRB (12-1413,12-1426,12-1467) -- Cases held in abeyance per Noel Canning (1/25/2013).
Kimberly Stewart v. NLRB (12-1338) -- Case held in abeyance per Noel Canning (1/25/2013).
Laboratory Corp. of America Holdings v. NLRB (D.C. Dist. Ct.) -- Order transfering case to U.S. Dist. Ct. for Dist. of New Jersey.
Lancaster Symphony Orchestra v. NLRB (12-1371, 12-1384) -- Cases held in abeyance per Noel Canning (1/25/2013). 28(j) letter filed 02/04/2013.
Latino Express, Inc. v. NLRB (12-1348, 12-1374) -- Cases held in abeyance per Noel Canning (1/25/2013).
Marquez Brothers Enterprises, Inc. v. NLRB (12-1278, 12-1357) -- Cases held in abeyance per Noel Canning (1/25/2013).
Merchants Building Maintenance v. NLRB (12-1402,12-1440) -- Cases held in abeyance per Noel Canning (1/25/2013).
Meredith Corp. v. NLRB (12-1287, 12-1336) -- Cases held in abeyance per Noel Canning (1/25/2013).
Milum Textile Services Co. v. NLRB (12-1235, 12-1275) -- Cases held in abeyance per Noel Canning (1/25/2013).
NOVA Southeastern University v. NLRB (11-1297) -- Case held in abeyance per Noel Canning (2/19/2013).
Oak Harbor Freight Lines, Inc. v. NLRB (12-1226, 12-1358,12-1360) -- Cases held in abeyance per Noel Canning (1/25/2013).
Operative Plasterers' & Cement v. NLRB (12-1291) -- Cass held in abeyance per Noel Canning (2/19/2013).
Sabo, Inc. v. NLRB (13-1010) -- Case held in abeyance per Noel Canning (1/25/2013).
Sands Bethworks Gaming v. NLRB (12-1240, 12-1311) -- Cases held in abeyance per Noel Canning (1/25/2013).
Santa Fe Tortilla Co. v. NLRB (13-1048) -- Petition for Writ of Mandamus or Writ of Prohibition (3/1/2013). Court order for NLRB to file a response to petition (3/11/2013).
Schwarz Partners Packaging v. NLRB (1:13-cv-00343-BAH) -- Complaint filed 3/15/13 in U.S. District Court for the District of Columbia.
Sodexo America, LLC v. NLRB (12-1413, 12-1426, 12-1467) -- Cases held in abeyance per Noel Canning (1/25/2013).
Spartan Mining Co. and Alpha Appalachia Holdings v. NLRB (12-1400, 12-1401 & 12-1419) -- Cases held in abeyance per Noel Canning (1/25/2013).
Supply Technologies, LLC v. NLRB (13-1012) -- Case held in abeyance per Noel Canning (1/25/2013).
Teamsters Union Local, et al. v. NLRB (12-1360, 12-1226, 12-1358) -- Cases held in abeyance per Noel Canning (1/25/2013).
The Finley Hospital v. NLRB (12-1421, 12-1445) -- Cases held in abeyance per Noel Canning (1/25/2013).
Vision of Elk River v. NLRB (12-1403, 12-1447) -- Cases held in abeyance per Noel Canning (02/07/2013).
Wellington Industries, Inc. v. NLRB (12-1396,12-1435) -- Cases held in abeyance per Noel Canning (1/25/2013).
HealthBridge Management LLC, et al. v. Kreisberg (NLRB Regional Director) -- Stay application to U.S. Supreme Court filed 2/4/2013; denied by J. Ginsburg 2/4/2013, denied by J. Scalia 2/6/2013.
National Labor Relations Board v. 3815 9th Avenue Meat & Produce Corp. d/b/a Compare Supermarket (13-474) -- NLRB application for enforcement (2/14/2013). Respondent's answer in opposition to the application for summary judgment enforcing an order of the NLRB (2/27/2013). Order placing motion on calendar (3/1/13). Motion to hold in Abeyance pending Noel Canning v. NLRB (7/11/13). Order denying motion to hold in Abeyance (7/25/2013).
New Vista Nursing v. NLRB (11-3440, 12-1027 & 12-1936) -- 28(j) letter filed 1/25/2013. DOJ supplemental letter brief addressing the Noel Canning case filed (2/28/2013). Oral argument held 3/19/2013 (Judges Smith, Greenaway, and Van Antwerpen). Decision striking down the recess appointment of Craig Becker issued 5/16/2013. NLRB Petition for Rehearing filed 7/1/2013. DOJ 28(j) letter regarding Sixth Circuit decision in GGNSC Springfield v. NLRB filed 7/11/2013. Order Staying Rehearing Decision filed 7/15/2013
1621 Route 22 West Operating v. NLRB (12-3768) -- Opening brief due 2/15/2013.
Lightner v. 1621 Route 22 West Operatin Co. (12-4696) (Dist. of New Jersey) -- Decision issued holding that the NLRB Acting General Counsel did not have authority to pursue 10(j) action given the holding in Noel Canning.
Enterprise Leasing Co. SE v. NLRB (12-1514); Huntington Ingalls v. NLRB (12-2000) -- 28(j) letter filed 1/28/2013. Oral argument held 3/22/2013.
Huntington Ingalls 28(j) letter filed 5/16/2013. Enterprise Leasing 28(j) letter filed 5/16/2013. Decided 7/17/13. Petition for rehearing filed by NLRB 8/29/30. Petition for rehearing filed by Hungtington Ingalls 8/30/13. Mandated Stayed 8/30/13. NLRB Petition for rehearing denied 9/5/13. Huntington Ingalls petition for rehearing denied 9/16/13.
Nestle Dreyer’s Ice Cream Co. v. NLRB (12-1684) -- Case removed from tentative calendar to mature (2/6/2013). Order placing case in abeyance per the outcome in Enterprise Leasing and Huntington Ingalls issued 4/3/2013.
Coastal Sunbelt Produce v. NLRB (12-2254) -- Order placing case in abeyance per the outcome in Enterprise Leasing issued 3/14/2013.
DR Horton v. NLRB (12-60031) -- Briefing complete. 28(j) letter filed 1/29/2013. Oral argument held 2/5/2013. Recess appointments issue deferred during oral argument. Court Order directing parties to file simultaneous letter briefs on recess appointments issue filed 2/8/2013. Petitioner's and Respondent's briefs filed 2/22/2013. 28(j) letter filed 5/16/2013. Response to 28(j) letter filed by NLRB on 6/10/2013. 28(j) letter in re American Express v. Italian Colors Restaurant filed 6/24/2013. Response filed 6/25/2013. 28(j) letter in re GGNSC Springfield filed 7/12/2013. 28(j) Letter Filed 8/16/2013. 28(j) Letter Filed 8/26/2013. Decided 12/3/13.
Dresser-Rand Co. v. NLRB (12-60638) -- Brief of Petitioner filed 12/21/12. 28(j) letter filed 1/31/2013. NLRB motion to extend briefing time filed 2/8/2013. Unopposed Motion of the NLRB for leave to exceed the word limit in their brief filed filed 3/15/2013. NLRB brief filed 3/15/2013. 28(j) letter filed 5/16/2013.
GGNSC Springfield v. NLRB (12-1529) -- Decided 7/2/2013. Recess appointments issue not reached.
Richards v. NLRB (12-1973) -- Decided 12/26/2012. Recess appointments issue not reached.
John Lugo v. NLRB (12-1984) -- Decided 12/26/2012. Recess appointments issue not reached.
FTS Int’l Proppants v. NLRB (12-3322) -- Briefing ongoing. NLRB brief due 3/8/2013. Notice of oral argument filed 5/1/2013. FTS Reply brief filed 5/6/2013. 28(j) letter filed 5/20/2013. Oral argument scheduled for 5/31/2013.
NLRB v. Relco (12-2203, 12-2503) Decision 8/20/13.
DirecTV v. NLRB (12-71297,12-72526) -- Opening brief filed 11/13/2012. NLRB answering brief filed 1/10/2013. Intervenor brief filed 1/24/2013. DirectTV reply brief filed 2/7/2013.
NLRB v. Gaylord Chemical Co. (12-15404) -- Briefing ongoing.
Kitsap Tenant Support Services, Inc. and Washington Federation of State Employees, et al. (19-CA-74715 et a.) (challenge to the authority of NLRB General Counsel) - Motion to Dismiss (4/30/2013). NLRB Order Denying Motion to Dismiss (5/14/2013).
Universal Lubricants, LLC and United Steel Workers, AFL-CIO, CLC (14-RC-105696) Decision and Direction of Election (6/14/2013) Request for Review of the Regional Director's Decision and Direction of Election and Motion to Stay Election filed (6/25/2013). Decided 7/16/2013
In NLRB-related matters pending in the federal courts of appeals where initial briefing has been completed, many employers are filing letters pursuant to Fed. R. App. P. 28(j) in the various circuits arguing that the appellate courts lack jurisdiction to review or enforce the NLRB’s orders. Following are some of these 28(j) letters, including the U.S. Chamber's own 28(j) letter in its challenge to the NLRB's Ambush Election Rule.
Lancaster Symphony Orchestra v. NLRB (2/4/2013)
Dresser-Rand Co. v. NLRB (1/31/2013)
Chamber, et al. v. NLRB -- D.C. Circuit (1/30/2013)
DR Horton v. NLRB -- Fifth Circuit (1/29/2013)
New Vista Nursing v. NLRB -- Third Circuit (1/25/2013)
Regional Directors Appointed by NLRB
Federal labor regulations clarify that, “The appointment, transfer, demotion, or discharge of any Regional Director or of any Officer-in-Charge of a Subregional office shall be made by the General Counsel only upon the approval of the Board.” 77 FR 45696. During the period when the NLRB lacked a quorum to conduct business under the Noel Canning decision, the Board "appointed" at least ten regional directors. Some employers have challenged the lawfulness of actions by regional directors whose appointments are in doubt.
Regional Director in Philadelphia (1/29/2013)
Regional Director in Los Angeles (5/23/2012)
Regional Director in Tampa (5/23/2012)
Regional Director in Detroit (1/6/2012)
Regional Director in Seattle (1/6/2012)
Regional Director in Atlanta (1/6/2012)
Regional Director in Los Angeles (1/6/2012)
Regional Director in Manhattan (1/6/2012)
Regional Director in Brooklyn (1/6/2012)
Regional Director in Chicago (12/14/2011)
Delegation of Authority to Acting General Counsel
On November 9, 2011, the Board issued an order (76 FR 69768) delegating,
“to the General Counsel full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j) or section 10(e) and (f) of the Act, contempt proceedings pertaining to the enforcement of or compliance with any order of the Board, and any other court litigation that would otherwise require Board authorization" and “full and final authority and responsibility on behalf of the Board to certify to the Attorney General the results of any secret ballot elections held among employees on the question of whether they wish to accept the final offer of settlement made by their employer pursuant to section 209(b) of the Labor Management Relations Act, 29 U.S.C. 179(b)" ... "during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.”
Accordingly, some employers have challenged the authority of the acting General Counsel to proceed, on the ground that no lawful delegation to the GC from a lawful quorum.
U.S. Chamber Statements and Blog Posts
Blog Post: "Yet Another Court Rules President Obama's NLRB Recess Appointments Unconstitutional" by Rachel Parker (5/17/2013)
Blog Post: "NLRB Asks Supreme Court to Review Noel Canning Decision" by Rachel Parker (4/25/2013)
Blog Post: "NLRB Seeks Supreme Court Review of Recess Appointments Decision" by Blair Holmes (3/12/2013)
Blog Post: "NLRB Authority Under Fire" by Sheryll Poe (3/26/13)
Op-Ed: The Hill, "Reform CFPB to Save It" by David Hirschmann (2/13/2013)
Blog Post: "Union Loses Case Before Unlawful NLRB - Will It Appeal?" (2/14/2013)
Hill Testimony: "The Future of the NLRB After Noel Canning" by Roger W. King on behalf of the U.S. Chamber (2/13/2013)
Op-Ed: Politico, "The NLRB's Uncertain State" by Thomas J. Donohue (2/5/2013)
Blog Post and Statement: "Federal Court Rules NLRB Recess Appointments Unconstitutional" (1/25/2013)
Press Release: "U.S. Chamber Comments on D.C. Circuit’s Ruling Regarding NLRB Recess Appointments" (1/25/2013)
Press Release: "U.S. Chamber Joins Challenge to NLRB Appointments" (3/15/2012)
Blog Post: "Is NLRB Open for Business? U.S. Chamber Lawsuit Says No" (9/19/2012)
Blog Post: "Appeals Court Hears NLRB Recess Appointments Case" (12/5/2012)
Analysis, Reports, and Media Coverage
Analysis: SCOTUSBlog, "Commentary: Will the filibuster deal moot Noel Canning?" (7/16/13)
Media: The Wall Street Journal, "The Price of NLRB Defiance" (5/31/2013)
Media: Reuters, “Noel Canning agrees Supreme Court should review NLRB appointees” (5/24/2013)
Media: The Wall Street Journal, “U.S. Chamber Asks Supreme Court to Hear NLRB Case” (5/23/2013)
Media: Washington Times, “Chamber weighs in against Obama NLRB picks” (5/23/2013)
Media: The Hill, “Chamber to argue case against Obama's recess appointments at Supreme Court” (5/23/2013)
Media: The Volokh Conspiracy, “Noel Canning Recess-Appointments Case: Battle Is Joined” (5/23/2013)
Media: SCOTUSblog, “Broad limit on appointments urged” (5/23/2013)
Media: Free Enterprise, “Supreme Court Asked to Uphold Unconstitutional NLRB Recess Appointments Decision” (5/23/2013)
Media: Wall Street Journal, "Tough Tuesday for the NLRB" (5/7/2013)
Report: CRS, "The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications" (3/27/2013)
Media: CNBC, "NLRB vs. the Free Market?" (3/14/13)
Media: NPR, "Labor Relations Board Will Take Recess Appointment Decision To Supreme Court" (3/12/2013)
Media: Associated Press, "Labor board will appeal recess appointments case to US Supreme Court" (3/12/2013)
Media: The Washington Times, "Obama to appeal recess appointment ruling to Supreme Court" (3/12/2013)
Media: The Hill, "Obama appealing to Supreme Court over recess appointments" (3/12/2013)
Media: The Blog of Legal Times, "NLRB to Appeal Recess Case Directly to Supreme Court" (3/12/2013)
Media: Workplace Prof Blog, "DOJ Comments on Noel Canning" (3/2/2013)
Media: The Washington Examiner, "Court orders NLRB to justify continuing operation in wake of recess appointee ruling" (2/22/2013)
Congressional Hearing: House Education & Workforce Committee, Subcommittee on Health, Employment, Labor and Pensions, "The Future of the NLRB: What Noel Canning vs. NLRB Means for Workers, Employers and Unions" (2/13/2013)
Press Release: The White House, Office of the Press Secretary, "Presidential Nominations Sent to the Senate" (2/13/2013)
Media: The Blog of LegalTimes, "After NLRB Decision, a Waiting Game for Employers, Workers" (2/8/2013)
Analysis: Jones Day Publication, "NLRB Proceedings in the Wake of Noel Canning" (2/2013)
Report: Congressional Research Service (CRS), "The Noel Canning Decision and Recess Appointments Made from 1981-2013" (2/4/2013)
Media: Reuters, "Hospital chain defies NLRB rulings after court decision" (1/31/12)
Media: Wall Street Journal, "Chamber Urges Businesses to Appeal Labor Rulings" (1/31/2013)
Analysis: Mayer Brown Legal Update, "District of Columbia Circuit Holds NLRB Recess Appointments Invalid, Undermining NLRB and Consumer Financial Protection Bureau Decisions" (1/29/2013)
Media: Wall Street Journal, "Courts? Who Listens to Courts?" (1/28/2013)
Media: The Hill, "Sen. Johanns: Court ruling could render NLRB, CFPB actions ‘void’" (1/28/2013)
Media: Reuters, "U.S. appeals court says Obama recess appointments 'invalid'" (1/25/2013)
Media: Wall Street Journal, "Obama's Abuse of Power" (1/25/2013)
Media: The Hill, "Obama recess appointments to labor board ruled unconstitutional" (1/25/2013)
Media: The Washington Post, "Court says Obama exceeded authority in making appointments" (1/25/2013)
Media: NPR, "Court Ruling Upsets Conventional Wisdom On Recess Appointments" (1/25/2013)
Media: Reuters, "US court rules Obama's appointments unconstitutional" (1/25/2013)
Media: The Washington Times, "Obama recess appointments unconstitutional" (1/25/2013)
Report: Rosenberg, Understanding the Centrality of the Appointments Clause as a Structural Safeguar of OurScheme of Separated Powers: The Senate's Exclusive and Plenary Confirmation Power Trumps Presidential Intrasession Recess Appointments (2/21/2012)