In January 2012 President Obama appointed three members to the National Labor Relations Board (“NLRB”) while the Senate was in a pro forma session. Certain judges and senior officials of agencies such as the NLRB are appointed by the president and confirmed by the Senate. Under certain circumstances, however, the president may make appointments when the Senate is in recess. In order for a recess appointment to remain in effect, the Senate must approve the appointment before the end of the next session of Congress. If the appointment is subsequently not approved, the position becomes vacant.
On June 26, 2014, in a unanimous (9-0) decision in the case National Labor Relations Board v. Noel Canning, the Supreme Court limited the president’s power to make appointments when the Senate is on a short break or in a pro forma session. In order for a break to be considered a recess, during which the president has authority to make such appointments, the break has to, among other things, last at least ten days. In January of 2012 when the President appointed Sharon Block, Richard Griffin, and Terence Flynn to the NLRB, the Senate was on a three-day holiday break. The Supreme Court’s ruling invalidated the three appointments made by the President, calling into question approximately 436 cases decided by the NLRB between January 2012 and mid-2013 during the tenure of two of the three invalid appointees.
The NLRB is a federal agency charged with ruling on certain labor issues and disputes, including matters that fall under the scope of the National Labor Relations Act. The Supreme Court’s ruling now raises the issue of whether the decisions made by the NLRB when the now invalid appointees were involved in the cases will have to be revisited and decided by the current five members of the Board, all of whom have been confirmed by the Senate. Some members of the Senate, including Senator Tim Scott from South Carolina, are publicly advocating for those cases to be reheard and decided by the properly confirmed Board.
If the NLRB is tasked with revisiting each of the approximately 436 cases previously decided during the tenure of the invalid appointees, the Board’s current caseload will likely take a backseat to those decisions. In light of this concern, the NLRB’s current workload, and the partisan makeup of the Board, many are concerned that the previous decisions will simply be rubber-stamped rather than revisited and decided on the merits. Whether the Board will revisit each case, or simply push the decisions through, is yet to be seen.
Nonetheless, while creating confusion with respect to the treatment of cases previously decided by the NLRB, the Supreme Court’s clarification of the Recess Appointments Clause of the U.S. Constitution clears up longstanding questions that have been raised by both political parties over the last few decades regarding the authority of the president to make recess appointments. The ruling clarified the ability of a president to make recess appointments and confirmed the authority of the Senate to approve such appointments, though stopped short of otherwise altering the balance of power between the Congressional and Executive branches with respect to the appointment and confirmation of certain federal positions.
About the Author: Attorney Steven M. Cerny is a Partner at JUX Law Firm and focuses on business and employment law, and litigation.