In a decision that could invalidate more than a year’s worth of National Labor Relations Board (NLRB) rulings, a federal appeals court on Jan. 25 said President Obama exceeded his constitutional authority when he made three recess appointments to the five-member board.
The problem, according to a panel of the U.S. Court of Appeals for the District of Columbia Circuit: The Senate was not technically in recess on Jan. 4, 2012, when Obama named Sharon Block, Terence F. Flynn and Richard F. Griffin Jr. to the NLRB.
The Obama administration is likely to appeal the case—Noel Canning v. NLRB—to the U.S. Supreme Court, either this spring or, more likely, in the 2013-2014 session. Several other cases in various federal appeals circuits have also challenged the NLRB recess appointments.
Until the Supreme Court acts, NRLB rulings dating from January 2012 still stand. However, if the High Court upholds the D.C. Circuit’s decision, hundreds of rulings in which Block, Flynn and Griffin participated would be thrown out.
The NLRB has been unusually active in the last year, issuing important rulings on:
- Employees’ use of social media
- At-will employment
- Arbitration agreements
- Confidentiality of internal investigations
- Employees’ off-duty access to an employer’s premises
- “Quickie” union elections.
All could be invalidated. However, NLRB Chair Mark Gaston Pearce said in a statement that the board would continue to meet, hear cases and issue rulings pending completion of the litigation. The board currently has three members—Pearce, Block and Griffin—enough to legally conduct its business.
Senate Republicans had blocked confirmation of Obama’s NLRB appointments in late 2011, leaving the board with just two members, too few to take any official action. But in January 2012, the Senate stopped legislating during a 20-day “holiday,” although it did not formally adjourn. Instead, Republicans held five-minute pro forma sessions every three days.
Obama moved to fill the NLRB anyway, citing the Constitution’s recess appointments clause, which allows presidents to bypass confirmation proceedings when the Senate is in recess and unable to provide its “advice and consent” on presidential appointments.
The appeals court panel ruled that Obama lacked the authority to decide what constitutes a recess. It said recess appointments can only occur when the Senate is in formal recess between sessions, not when it is just taking a break. Presidents have used recess appointments to fill government vacancies hundreds of times in United States history, usually after Congress has bottled up nominations.