In a unanimous decision, the D.C. Circuit Court of Appeals ruled today that the President of the United States can make recess appointments only when the Senate has formally adjourned between sessions of Congress - not when members of Congress leave Washington for a brief break.  Last year, President Obama used the recess appointment power to fill three seats on the National Labor Relations Board (NLRB), an agency that has been used as a power center for President Obama’s union allies.  In making the appointment, the Obama Administration claimed that the U.S. Senate was in recess even though the Senate still considered itself to be in session.  At the time, most lawmakers had left Washington D.C. for the holidays.

In its decision, the D.C. Circuit Court of Appeals determined that a “recess” refers to the break when Congress formally adjourns after a two-year session, not a period of time when lawmakers may be away from Washington D.C. for a brief break. 

The impact of this decision on the NLRB will be immediate and significant.  The law requires three members on the five-member Board in order to have a quorum to conduct business or issue orders.  See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010).  Therefore, the validity of all NLRB orders issued since these recess appointments were seated is in question--all are arguably void--including the decisions concerning workplace social media policies, confidentiality policies, requirements to provide a union with witness statements, and the extension of the dues deduction obligation beyond the expiration of a collective bargaining agreement.  In addition, the NLRB will have no power to act unless and until the Senate votes to confirm President Obama’s nominees.

The Board has taken the position that the decision only affects the one case and that the President’s appointments will ultimately be upheld.  Clearly, we have not heard the last of this Circuit Court decision as this issue will likely be appealed by the NLRB to the United States Supreme Court.

Obermayer labor and employment law attorneys are available to provide guidance and assistance on these issues.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.