President Obama’s 2012 NLRB recess appointments were unconstitutional

Hundreds of National Labor Relations Board (NLRB) decisions now must be reconsidered, because the United States Supreme Court held President Obama’s 2012 NLRB recess appointments were unconstitutional.  Without the recess appointments, the Board lacked the necessary quorum to issue any rulings until the Board was properly filled in July 2013.

On January 4, 2012, President Obama made three controversial recess appointments – Democratic nominees Sharon Block and Richard Griffin, along with Republican nominee Terence Flynn.  At that time, the Board had only two members – Democratic Chairman Mark Pearce and Republican member Brian Hayes.  The recess appointees remained on the Board until they were replaced by four confirmed nominees who joined the incumbent Chairman Pearce in July 2013.

Numerous employers, including Noel Canning, challenged the 2012 NLRB recess appointments, but the Court recently focused on three questions in its decision regarding whether the 2012 NLRB recess appointments were unconstitutional.  First, what was the scope of the phrase “recess of the Senate” in the Recess Appointments Clause of the Constitution?  Next, what was the scope of the phrase “vacancies that happen during a recess of the Senate” in the Recess Appointments Clause?  And finally, how should the length of the recess be calculated?  The Court put significant weight on historical practices when answering these questions.

First, the Court found that a recess of the Senate in the Recess Appointments Clause could cover either an inter-session or intra-session recess of Congress.  An inter-session recess is when the Congress is between sessions, while an intra-session recess occurs when Congress takes a break in the middle of a session of Congress.  In past practice, the Court found that in order to take a recess of longer than three days, one house of Congress would need approval from the other.  Throughout history no appointments had ever been made during an intra-session recess lasting less than ten days.  The Court, thus, held “if a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause…and a recess lasting less than 10 days is presumptively too short as well.”

Next, the Court considered what the scope of the phrase “all vacancies that may happen during the recess of the Senate.”  The Court again determined through historical precedent that the phrase “all vacancies” included vacancies that occurred during a session of the Senate, but were not filled before the recess of the Senate.  To rule otherwise would “prevent the President from making any recess appointment that arose before a recess…no matter how dire the need…”  The Court decided that the Recess Appointments Clause is meant first and foremost to give the President power to avoid severe problems that could arise during a recess of the Senate.

Finally, the Court considered how the length of the Senate’s recess should be calculated.  At issue in Noel Canning were the President’s three appointments to the NLRB during a three day break between previously agreed upon several Pro Forma sessions of the Senate.  The Court considered whether that three-day break was a recess for purposes of the clause or a part of the session.  The Court found that the Senate is in session when it says that it is, provided that it retains the capacity to conduct Senate business, and that the pro forma sessions met that burden; although the Senate passed a resolution to conduct no business during the sessions, it still retained the power to do so through a unanimous consent agreement.

NLRB v. Noel Canning, 573 U.S. 1 (2014).

Professional Pointer: Employers should consult with a legal representative when evaluating the impacts of NLRB decisions issued between January 2012 and July 2013.   This includes, but is not limited to, cases involving employer social media policies, off-duty employee access rules, dues check off after contract expiration, and employee discipline while bargaining for a first contract.

Every one of these cases was decided by a Board that lacked authority to act, and is therefore null and void ab initio – from the beginning.  The Board will be required to establish new three-member panels in every case decided during this period of time, and the new panels may reach a different result.

Employers should expect the NLRB to act quickly, because Chairman Pearce will most likely be prevented from serving on any of the new three-member panels due to his previous involvement in the decisions.  As a result, the remaining members who have yet to consider the facts are two Democratic members and two Republican members; however, Democratic member Nancy Schiffer’s appointment ends on December 16, 2014.  If a new Democratic member is not added after the expiration of Schiffer’s appointment, any cases requiring reconsideration will most likely be decided by a new three-member panel with a majority of Republican members.

Editor’s Note: This article should not be construed as legal advice.

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