In Noel Canning v. NLRB, the Supreme Court issued a labor law decision most surprising because of its unanimity. The Supreme Court held on June 26, 2014, that President Obama’s controversial January 2012 appointments of three members to the National Labor Relations Board (Sharon Block, Terence F. Flynn, and Richard Griffin) were invalid exercises of his office under the Constitution. The NLRB in that case had ruled against an employer in an unfair labor practice charge. The employer appealed, asserting that because three of the nation’s five Board members had been placed on the Board by the President as “recess appointments” during a time when the Senate was not actually in recess, the Board lacked authority to issue any ruling at all.
Justice Stephen Breyer, writing on behalf of a unanimous Court, confirmed that the Board appointments had been invalid. Although Article II of the Constitution allows for “recess” appointments without a confirmation vote when the Senate is not in session, at the time President Obama made these particular appointments to the NLRB, the Senate had declared that it was maintaining a pro forma session. According to the Court’s simple statement, the Senate “is in session when it says that it is.”
The Court’s decision holds that a three-day adjournment by Congress is not enough for the President to exercise his or her recess appointment powers. It remains unclear exactly how long a declared break needs to last before it triggers the President’s recess appointment powers.
Although this case rose to the Supreme Court through the efforts of a single employer (and lots of attorneys), the Noel Canning decision voids around 900 such decisions – most of them burdensome to various employers throughout the country – issued by the National Labor Relations Board since January 2012. Importantly, the Board has operated under a valid quorum since July 30, 2013, when the Senate confirmed the full slate of five members (Kent Hirozawa, Harry Johnson III, Philip Miscimarra, Mark Gaston Pearce and Nancy Schiffer) currently making up the Board. During its tenure, the invalid Board approved several NLRB Regional Directors; this will surely raise questions about the legitimacy of any local enforcement actions initiated during this same time period.
Coolidge Wall will continue to track and report on the repercussions of this significant decision in the weeks to come.