Noel Canning v. NLRB - 403 U.S. App. D.C. 350, 705 F.3d 490 (2013)

Rule:

The National Labor Relations Board cannot act without a quorum of three members. Also, the Recess Appointments Clause permits only the filling up of vacancies that may happen during the Recess of the Senate.

Facts:

Petitioner Noel Canning was a bottler and distributor of Pepsi-Cola products and was an employer within the terms of the NLRA. The respondent National Labor Relations Board (NLRB) administrative law judge concluded that petitioner had violated the NLRA. Petitioner sought review of a decision of respondent decision finding that plaintiff violated § 8(a)(1) and (5), 29 U.S.C.S. § 158(a)(1), (5), of the National Labor Relations Act by refusing to reduce to writing and execute a collective bargaining agreement reached with a union. The respondent cross-petitioned for enforcement of its order. On the merits of the respondent’s decision, petitioner argued that respondent did not properly follow applicable contract law in determining that an agreement had been reached and that therefore, the finding of unfair labor practice was erroneous. Also, they argued that respondent lacked authority to act for want of a quorum and that the vacancies that were purportedly filled did not happen during the Recess of the Senate as required by the US Constitution. The respondent conceded that the appointment at issue were not made during the intersession recess. 

Issue:

Did the respondent had the authority to issue the order?

Answer:

No.

Conclusion:

The petition of the petitioner was granted and the respondent’s order was vacated. The cross-petition of the respondent for enforcement of its invalid order was denied. The court held that it was undisputed that the respondent must have a quorum of three in order to take action. It was further undisputed that a quorum of three did not exist on the date of the order under review unless the three disputed members (or at least one of them) were validly appointed. The court concluded that "the Recess" is limited to intersession recesses. The court then held that the petitioner's understanding of the constitutional provision was correct, and the respondent was wrong. The respondent had no quorum hence its order was void. The court further held that considering the text, history, and structure of the Constitution, those appointments were invalid from their inception. And because the respondent lacked a quorum of three members when it issued its decision in this case, its decision must be vacated.