Much to the surprise of many commentators who relied upon the historical ability of the president to make recess appointments, the D.C. Circuit, in Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. Jan. 25, 2013) a case involving a Washington state Pepsi Cola distributor, ruled that the recess appointments of three members of the National Labor Relations Board was done in violation of the U.S. Constitution. Thus, the recess appointments of Board Members Block, Flynn and Griffith were invalidated resulting in a lack of a quorum for decisions rendered since their appointment on January 3, 2012.

The Noel Canning decision severely limited the definition of a recess appointment. Instead of the expansive reading of the term which has been utilized by most presidents over the last century (including presidents from both parties with President Bush making the most recess appointments of recent presidents), the  D.C. Circuit interpreted the concept of recess appointments very narrowly, defining a recess appointment as only an “intersession recess.” The court further restricted the definition of recess appointments by limiting the ability of the president to make appointments to only those positions that are vacant during the intersession recess. In making this decision, the court reasoned that a more expansive reading of this constitutional provision would defeat the intended separation of powers between the executive and legislative branches of the United States government.

The net effect of this ruling is to potentially invalidate any and all decisions rendered by the NLRB since January 2012. This could include decisions rendered by the NLRB on social media, employment at will and requests for confidentiality in work place investigations. While the pronouncements of the NLRB on these issues cannot be completely ignored, private employers should expect that there will be significant battles over these issues, especially in light of the stalemates that appear to exist between the parties in power in Washington, D.C.