Today, the U.S. Supreme Court issued a unanimous decision striking down President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (“NLRB” or “Board”). The Court’s decision will likely have the effect of invalidating hundreds of Board decisions (including a number of controversial decisions) that were issued prior to July 30, 2013, when the Senate confirmed five NLRB nominees.
President Uses Recess Appointments to Keep “Quorum”
The NLRB is a quasi-judicial body with five members, appointed by the President and confirmed by the Senate, to five-year overlapping terms. In 2010, the Supreme Court ruled that the NLRB does not have the authority to issue decisions (or adopt new rules) when its membership dips below three members (i.e., when it does not have “quorum”).
In January 2012, the NLRB was at risk of falling below the three-member quorum requirement because the Senate had failed to confirm any of the President’s nominations. In response, President Obama attempted to appoint three Board members – Sharon Block, Richard Griffin, and Terence Flynn – without the Senate’s approval, pursuant to use his authority under the Recess Appointments Clause to avoid the confirmation process.
Unfortunately for the President, after a lengthy litigation process, the Supreme Court has concluded that the President did not have the constitutional authority to make recess appointments in January 2012 because the Senate was not, in fact, in “recess.” Instead, the Senate was holding pro forma sessions every three days. According to the Court, “[t]hree days is too short a time to bring a recess within the scope of the [Recess Appointments] Clause.” Thus, the Supreme Court concluded that “the President lacked the power to make the recess appointments here at issue.”
The next step for the NLRB is to assess the damage. According to a press release, the Board is “analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.” Because the Supreme Court affirmed the D.C. Circuit’s decision to vacate the NLRB’s order, it is possible that all orders (and rules) issued by the Board during this time were invalid. Specifically, these invalid decisions would have been issued by the recess-appointed members who served from January 2012 until July 30, 2013, when the Senate confirmed five new NLRB members.
Bottom Line
For the second time in four years, the Supreme Court has issued a decision that will likely nullify hundreds of NLRB decisions. Because the Board now has five members, the Board will likely go through the invalid opinions and issue a new decision either affirming, amending, or overturning the orders that were issued by the improperly-constituted Board. While that’s not great news for an employer who received an adverse ruling from the Board from January 2012 to July 30, 2013, it may give the employer an opportunity to convince the current Board of the merits of its case.