Supreme Court Rules NLRB Recess Appointments Unlawful

In the NLRB v. Noel Canning decision handed down on June 26, 2014, the U.S. Supreme Court ruled that the Obama administration’s recess appointment of three members to the National Labor Relations Board (“NLRB”) in January of 2012 was not lawful. Accordingly, hundreds of decisions of the NLRB are now vacated.

By way of background, in June of 2010, the Supreme Court ruled in New Process Steel that the NLRB could not act with only two members. That ruling temporarily overturned hundreds of decisions. As many of you know, the NLRB later rubber-stamped those decisions.

By late 2011, the NLRB was again facing the possibility of reducing to two members. To avoid that circumstance the Obama administration appointed pending Democratic nominees Sharon Block and Richard Griffin, and pending Republican nominee Terrence Flynn, to fill the vacancies.

At the time of the “recess” appointments, the Senate was not technically in recess, though not actively working during the holidays. The administration argues that for all intents and purposes the Senate was not in session. The Supreme Court disagreed, and maintained a more strict interpretation of Article II, Section 2 of the U.S. Constitution, which empowers the President to “fill up vacancies that may happen during the Recess of the Senate.”

This decision may cause more practical problems for the NLRB than the New Process Steel decision. In July of 2013, the recess appointees were replaced by four confirmed nominees. So the NLRB now has a properly appointed membership. But this means that many of the decisions that the recess appointees made, or participated in, must now be revisited by new NLRB members, some of whom may not share the same view of the case as the previous appointees. This review might result in different decisions, and will certainly result in considerable additional work for the current NLRB. In short, working out the practical issues caused by this decision could consume a fair amount of the NLRB’s time and resources, potentially distracting the agency from both current cases and its pursuit of new rule-making.

Stay tuned, as the practical impacts of this decision may not be fully seen or realized for some time to come.