Donate Button
Follow us...


NLRB v. Noel Canning

Full name: National Labor Relations Board v. Noel Canning

Click here to read the decision

Samuel Alito
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John G. Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Note: Court justices do not represent any political party. The color of each judge's name represents the political party of the president who appointed the judge.

Click here for a list of all Supreme Court justices

Related Issues

Presidential Appointments
Understanding Senate Filibusters


The Supreme Court ruled that four recess appointments made by President Obama were unconstitutional. Those appointments were...

o Richard Cordray to head the Consumer Financial Protetion Bureau

o Richard Griffin, Sharon Block, and Terence Flynn to the National Labor Relations Board (NLRB)

What was the problem?

The four appointments were made in Jan. 2012 while the Senate was - for all practical purposes - not in session. Senate Republicans had been blocking those nominations using the filibuster. A recess would have allowed the president to make those appointments without requiring Senate approval.

To keep the Senate from going into a recess, a few Senate Republicans held pro forma sessions. Obama made the recess appointments anyway during one of these three-day breaks.

How the case got to the Supreme Court

The union representing employees of Noel Canning - a Pepsi Cola bottler in Washington - complained to the NLRB that the company had reneged on a pay agreement. The agency ruled in favor of the union.

Noel Canning challenged the decision in court, claiming that the NLRB was not legally capable of making decisions since 3 of the agency's 5 members were appointed in violation of the Constitution.

How the Supreme Court ruled

All of the nine justices agreed that the four appointments were unconstitutional. Article 2, Section 2 of the Constitution states...

"The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session."

The Supreme Court could have affirmed the ruling by the D.C. Circuit Court of Appeals. A three-judge panel ruled that...

o ... the word the before Recess meant only the break between Senate sessions.

o ... the phrase Vacancies that may happen during the Recess of the Senate could be interpreted as the position not being vacant before the Senate adjourned.

At the time the Constitution was written, recesses could last for six months.

Although all nine justices agreed on the unconstitutionality of the four appointments, a majority rejected those stricter interpretations in favor of allowing recess appointments to continue as they have in recent administrations.

Hundreds of NLRB decisions must now be reconsidered

The National Labor Relations Board issued hundreds of rulings with the improperly appointed members. All of those - many of which concern unfair labor practices - potentially may be challenged.

Most of the rulings are likely to be confirmed by the current board, which consists of 3 Democrats and 2 Republicans.

Decisions made by the Consumer Financial Protection Bureau will not be affected, since Cordray was later confirmed by the Senate and he reviewed all of the decisions made while he was serving improperly.

                   Tell us if we goofed                                                  Copyright