In a bombshell 9-0 ruling today, the Supreme Court of the United States struck down three “recess” appointments that President Barack Obama made to the National Labor Relations Board in January 2012.  The Court held that, under the United States Constitution, President Obama did not have the power to appoint the three members without Senate approval because the Senate was not in recess.  The decision will force the NLRB to revisit a slew of rulings issued by the unconstitutionally appointed Board members.  

“[T]he the Recess Appointments Clause does not give the President the constitutional authority to make the appointments here at issue,” Justice Stephen Breyer wrote in the Court’s majority opinion.  The decision in the case, Noel Canning v. NLRB, invalidated the 2012 appointments of would-be NLRB members Terence Flynn, Richard Griffin, and Sharon Block.

The case arose when the NLRB, consisting of the January 2012 “recess” appointees, decided that Noel Canning, a Pepsi bottler, violated the National Labor Relations Act by refusing to execute a collective bargaining agreement.  The United States Court of Appeals for the District of Columbia Circuit found that President Obama’s appointments of Block, Flynn, and Griffin were constitutionally invalid.  The court held that, because the invalid appointments deprived the Board of a quorum, and therefore any authority to decide the case, the Board’s decision that Noel Canning violated the NLRA must be vacated.  The Supreme Court’s decision today affirmed the D.C. Circuit ruling.

The impact of Noel Canning and similar cases is expected to be significant.  The same quorum existed when the Board ruled in many other cases, and in other cases, another Obama NLRB has been challenged as unconstitutional.  In May 2013, U.S. Court of Appeals for the Third Circuit in NLRB v. New Vista Nursing and Rehabilitation invalidated President Obama’s appointment of former union lawyer Craig Becker in March 2010.  Because Becker participated in the three-member NLRB panel that ruled in New Vista’s case, the court vacated the Board order finding that New Vista refused to bargain with the Service Employees International Union (SEIU).  The case involved an indirect challenge to a Board determination that New Vista’s licensed practical nurses, whom the SEIU unionized, were not supervisors under the NLRA. The New Vista case has been stayed pending the Supreme Court's decision in Noel Canning.