In a move with extremely significant implications, the U.S. Court of Appeals for the D.C. Circuit held that President Obama’s three recess appointments to the National Labor Relations Board in January of 2012 were unconstitutional. Because the three recess appointments were invalid, the Board was legitimately comprised of only two members (an insufficient number) when it issued its decision and order in the underlying case. (As we previously reported, the U.S. Supreme Court held in New Process Steel, LP v. NLRB, 130 S. Ct. 2635 (2010), that the Board must have at least three members (i.e., “quorum”) to issue decisions and orders, as well as rulemaking.) Accordingly, the D.C. Circuit in Noel Canning v. NLRB, Case No. 12-1115 (D.C. Cir. Jan. 25, 2012), vacated the Board’s unfair labor practice determination.
Generally, the President is supposed to nominate Board members, and the Senate is supposed to confirm, before they can be appointed. However, it has been recognized that when the Senate is in recess, the President may temporarily appoint a Board member without Senate approval. On January 4, 2012, President Obama, attempting to appoint Board members without Senate approval, recess appointed three individuals as Board members – Sharon Block, Richard Griffin, and Terence Flynn. If valid, this action would have properly taken the Board up to a full complement of five members (albeit only for a limited period of time).
In this case, however, the D.C. Circuit invalidated the recess appointments on two separate grounds. First, the court reviewed the text and history of the Recess Appointment Clause to the Constitution and held that a recess appointment must be made during “intersession recesses” of the Senate. The Board appointments were not made during an intersession recess because they were made on January 4, 2012, which was one day after the Senate began a new session.
Second, the court concluded that the Constitution permits the President to make a recess appointment only when the vacancy arises during the recess. Two of vacancies arose on dates when the Senate was in session, so those vacancies did not qualify for a recess appointment. The final vacancy, which was open on January 3, 2012, was similarly invalid because “the Senate did not take an intersession recess . . . .” Instead, the Senate held “pro forma” sessions every three days from December 20, 2011 through January 22, 2012.
Bottom Line
The Board has, since January of 2012, issued numerous important decisions (some of which purported to change well-established law), and the Board has also engaged in significant rulemaking. Unless the D.C. Circuit reverses itself – or the Supreme Court overturns the D.C. Circuit’s decision – all of the Board’s recent and controversial actions are in jeopardy. Undeterred, Board Chairman Mark Gaston Pearce has announced that the Board will continue issuing decisions and orders notwithstanding the D.C. Circuit’s decision.
Now that we are well into January of 2013, the President has no ability at the present time to recess appoint anyone as a Board member, and given the position of the White House that the appointments were constitutional, it seems unlikely that the President will nominate a package of Board members for Senate approval. In the meantime – while this issue continues to be reviewed by the Courts – the Board and its decisions and orders are in limbo.
Attorney Grant T. Collins also contributed to this report.