President exceeds constitutional authority naming members of the National Labor Relations Board federal appeals court rules FULL TEXT

President exceeds constitutional authority naming members of the National Labor Relations Board federal appeals court rules FULL TEXT

"To adopt the Board’s proffered intrasession interpretation of “the Recess” would wholly defeat the purpose of the Framers in the careful separation of powers structure"

Argued December 5, 2012 Decided January 25, 2013 No. 12-1115 NOEL CANNING, A DIVISION OF THE NOEL CORPORATION, PETITIONER v. NATIONAL LABOR RELATIONS BOARD, RESPONDENT INTERNATIONAL BROTHERHOOD OF TEAMSTERS LOCAL 760, INTERVENOR Consolidated with 12-1153

On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board. Noel Canning v. NLRB FULL TEXT PDF

I. INTRODUCTION
At its inception, this appears to be a routine review of a decision of the National Labor Relations Board over which we have jurisdiction under 29 U.S.C. § 160(e) and (f), providing that petitions for review of Board orders may be filed in this
court. The Board issued its order on February 8, 2012. On February 24, 2012, the company filed a petition for review in this court, and the Board filed its cross-application for enforcement on March 20, 2012.

While the posture of the petition is routine, as it developed, our review is not. In its brief before us, Noel Canning (along with a movant for status as intervenor whose motion we will dismiss for reasons set forth hereinafter) questions the authority of the Board to issue the order on two constitutional grounds. First, petitioner asserts that the Board lacked authority to act for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under putative recess appointments which were made when the Senate was not in recess.

Second, it asserts that the vacancies these three members purportedly filled did not “happen during the Recess of the Senate,” as required for recess appointments by the Constitution. U.S. Const. art. II, § 2, cl. 3. Because the Board must have a quorum in order to lawfully take action, if petitioner is correct in either of these assertions, then the order under review is void ab initio. See New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010). Noel Canning v. NLRB FULL TEXT PDF