	Introduction

On January 4, 2012, President Obama exercised his recess appointment power and appointed three individuals—Terrence F. Flynn, Sharon Block, and Richard F. Griffin, Jr.—to be members of the National Labor Relations Board (NLRB or Board). Whether the President had authority to make these appointments pursuant to the Recess Appointments Clause was at issue in the 2014 Supreme Court case National Labor Relations Board v. Noel Canning . This case marked the first time that the Court would examine the scope of the Recess Appointments Clause. This report provides an overview of the Recess Appointments Clause, as well as the unique factual circumstances of the NLRB recess appointments. The report also reviews the Supreme Court's decision in Noel Canning , and discusses some of the practical implications at issue for the NLRB in the aftermath of the Court's decision. However, the Court was sharply divided when it came to the reasoning for why the appointments were infirm. Despite adopting a broad reading of the Recess Appointments Clause, such that the President can make appointments during an inter- or intra-session recess of longer than 10 days to any vacancy, the majority of the Court ruled the appointments invalid because it determined that the Senate was only in an intra-session recess of three days, a period of time deemed insufficient to trigger the President's recess appointment power. Practical Implications for the NLRB After Noel Canning

Between January 4, 2012, the date of appointment for the three NLRB members at issue in Noel Canning , and August 5, 2013, when the Board consisted of three Senate-confirmed members, it is believed that the NLRB issued approximately 700 decisions and approved the appointments of several regional directors. On July 9, 2014, for example, the NLRB's General Counsel indicated that the agency had already set aside its orders in 43 cases that were pending in federal appellate courts when Noel Canning was decided. Although the NLRB has not indicated formally how it will address the remaining decisions that were issued during the relevant period, its approach is likely to follow the actions taken by the agency in 2010, when approximately 550 Board decisions were similarly called into question following the Supreme Court's decision in New Process Steel, L.P. v. National Labor Relations Board . In addition to setting aside Board orders in 43 cases, the NLRB has also filed motions with the various federal courts of appeals to return cases to the Board for further action.
On January 4, 2012, President Obama exercised his recess appointment power and appointed three individuals—Terrence F. Flynn, Sharon Block, and Richard F. Griffin, Jr.—to be members of the National Labor Relations Board (NLRB or Board). Whether the President had authority to make these appointments pursuant to the Recess Appointments Clause was at issue in the 2014 Supreme Court case National Labor Relations Board v. Noel Canning. The case marked the first time that the Court would examine the scope of the Recess Appointments Clause.
This report provides an overview of the Recess Appointments Clause, as well as the unique factual circumstances of the NLRB recess appointments. In Noel Canning, a unanimous Supreme Court concluded that the three recess appointments were constitutionally invalid. The Court was sharply divided, however, when it came to the reasoning for why the appointments were infirm. Despite adopting a broad reading of the Recess Appointments Clause, the majority of the Court ruled the appointments invalid because it determined that the Senate was only in an intra-session recess of three days, a period of time deemed insufficient to trigger the President's recess appointment power.
The report also discusses some of the practical implications at issue for the NLRB in the aftermath of the Court's decision, and examines how the Board will address the roughly 700 decisions that were issued between January 4, 2012, and August 5, 2013, when the NLRB consisted of three Senate-confirmed members. Although the NLRB has not formally outlined its plans for these decisions, its approach is likely to follow the actions taken by the agency in 2010, when approximately 550 Board decisions were similarly called into question as a result of the Supreme Court's decision in New Process Steel, L.P. v. National Labor Relations Board. In July 2014, the NLRB's General Counsel indicated that the agency had already set aside its orders in 43 cases that were pending in federal appellate courts when Noel Canning was decided. In addition, to setting aside these orders, the Board has also filed motions with the various federal courts of appeals to return other pending cases to the Board for further action.