Legal Alerts

30 Jun 2014

When is an NLRB Board Member Not a Board Member?

A presidential appointee to NLRB(the National Labor Relations Board) member (“Board”) is not a member of the Board when he or she was unconstitutionally appointed. That is the message the U.S. Supreme Court sent the President when it issued its decision in NLRB v. Noel Canning, Docket No. 12-1281. In its decision, issued June 26, the Supreme Court ruled that the President exceeded his authority under the “Recess Appointments Clause” of the U.S. Constitution when he appointed three new members to the NLRB during a three-day recess between pro forma sessions of the Senate in January 2012.

This decision has historical significance because it represents the first time the Supreme Court has defined the scope of a president’s right to make appointments to key positions in the government during times when the Senate is not actually in session. The Constitution requires Senate approval of most presidential appointments. However, the Recess Appointments Clause grants the President an exception from the requirement to obtain the “advice and consent” of the Senate for vacancies that “happen” during “the recess” of the Senate. Recent presidents have seized upon this clause to justify recess appointments of nominees to federal jobs who, for various reasons, the Senate has declined to approve.

The January 2012 appointments were such a case. President Obama nominated three individuals to serve as members of the NLRB but the Senate declined to act on the nominations before taking a winter break. The Senate then sought to block the President from making recess appointments in January by holding periodic pro forma sessions in which little or no work was conducted and the chamber was empty except for one Senator. In the midst of a three-day break between pro forma sessions, the President recess appointed the three individuals to positions on the Board. The new putative Board members proceeded to decide cases in the ordinary course of the Agency’s business. However, a number of employers challenged decisions issued against them by the Board contending that the appointments of the three Board members was constitutionally invalid and therefore the Board lacked a quorum to act.

The Supreme Court ruled that a three-day recess between Senate sessions is too short a time period to permit the President to make recess appointments and that a recess of more than three days and less than ten is presumptively too short absent “extraordinary circumstances.” Therefore, the President’s appointments to the NLRB in January 2012 were invalid. The decision contains a lengthy analysis of the historical meaning of the Recess Appointments Clause and history of presidential recess appointments.

The practical effect of the Supreme Court’s decision is to invalidate hundreds of decisions issued by the NLRB during the period in question. Among these cases are decisions dealing with the NLRB’s expanded view of social media protections and its restrictions on privacy in employer investigations. Relief from these draconian pronouncements will likely be short lived, since the present Board can be expected to re-decide these cases in the same manner.

The decision is particularly satisfying to The Lowenbaum Partnership because our Firm briefed and argued a case before the Fourth Circuit Court of Appeals raising precisely the same issue. That case is also pending before the Supreme Court and presumably will be resolved in a manner consistent with Noel Canning.

If you have any questions about the U.S. Supreme Court case or any other labor relations matter, please do not hesitate to contact Robert S. Seigel.


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