Those active in labor law are familiar with the political chaos that has surrounded the National Labor Relations Board (NLRB) since this past January.  In six months, the NLRB went from being the subject of a Circuit Court decision that may invalidate nearly a year’s worth of NLRB decisions to having all five Senate-confirmed members for the first time in a decade.  For those unfamiliar with the political buzzing that has been circulating around the NLRB this year, here is a recap:

On January 25, 2013, in Noel Canning v. N.L.R.B[1], the United States Court of Appeals for the District of Columbia (referred to herein as the D.C. Circuit) ruled that President Obama’s three appointments to the NLRB, Sharon Block, Terence Flynn, and Richard Griffin – whom he appointed in January 2012 and who would serve staggered terms – were unconstitutional.  President Obama made the appointments when the Senate was allegedly in “recess,” and therefore claimed that he did not need to obtain the Senate approval normally required by the United States Constitution.[2]  The D.C. Circuit, however, found that the Senate was not in “recess” as defined by the U.S. Constitution, but was holding “pro forma” sessions: although the Senate was not conducting any business, it was still meeting every few days.[3]  President Obama argued that the “pro forma” sessions rendered the Senate unable to confirm his nominations; the D.C. Circuit, however, held that a president’s recess appointments could only be made during intersession recesses (i.e. breaks between sessions of Congress), rather than during intrasession recesses (i.e. breaks within sessions of Congress).[4]  The D.C. Circuit did note that a few presidents had, in fact, made intrasession recess appointments pre-1947; however, no president attempted such appointments for eighty years after the Constitution was ratified, and when intrasession appointments were made, it was very rare.[5]  Mandating intersession appointments instead of intrasession appointments, according to the D.C. Circuit, was consistent with the intentions of the framers of the U.S. Constitution.[6] 

By invalidating President Obama’s appointments to the NLRB, the D.C. Circuit found that the NLRB had been operating without the three-member quorum required to issue decisions, and thus invalidated nearly a year’s worth of NLRB decisions.  Unsurprisingly, rather that re-visit the decisions issued in 2012, the NLRB has been waiting to see what the United States Supreme Court will hold, as it granted certiorari in Noel Canning on June 24, 2013.  Terrence Flynn left the Board in July 2012, but Sharon Block and Richard Griffin have continued to serve on the Board with Board Chairman Mark Pearce and fellow board member Brian Hayes.[7]  Because board members serve staggered terms, Hayes’s term expired in December 2012 and the Board has since been operating with the bare minimum of three members.[8]  However, Chairman Pearce’s term was set to expire on August 27, 2013, meaning that the NLRB would have lost its quorum of three members required to issue decisions.  This would have effectively shut down the NLRB and prohibited it from ruling on any cases until a full quorum was reached.

Finding that such a shutdown would render the NLRB unable to protect union workers from unfair labor practices, unions embarked on a campaign to pressure the Senate into confirming new nominees.[9]  Senators were at odds too: the Democrats threatened to challenge filibuster rules to force a vote on the nominees and Republicans threated to object to the President’s nominations.  So, to end the political fight, the Senate entered into a bipartisan deal – both parties would back down – and the White House agreed to appoint two new members (both Democrats) to replace the two recess appointees – Block and Griffin – who had been serving on the Board.[10] 

On July 30, 2013, the Senate confirmed all five new nominees to the National Relations Labor Board (NLRB): Mark Pearce (D) – the current chairman, who had been confirmed by the Senate in 2011 and was now re-nominated by President Obama; Nancy Schiffer (D), President Obama’s first new nominee; Kent Hirozawa (D), President Obama’s second new nominee, who was also former Chief Counsel to Chairman Mark Pearce; Harry Johnson III (R), who was nominated by the Republican party; and Philip Miscimarra (R), who was nominated by the Republican party as well.

Although this Board is consistent with the tradition of a three-member majority from the president’s party, it is the first time in a decade that the Board has been completely filled with Senate-confirmed board members.  And as we saw in Noel Canning, operating without confirmed board members can have the ramification of invalidating NLRB decisions…a situation that is not unfamiliar to the NLRB.  For instance, in New Process Steel, L.P. v. National Labor Relations Board, the United States Supreme Court held that NLRB had been operating for over a year without the 3-member quorum required to issue decisions.[11]  This decision invalidated every single NLRB decision issued between January 2008 and April 2010, and required the NLRB to revisit each of the 554 decisions and re-issue decisions with a three-member quorum.[12]

So is the NLRB finally out of the limelight?  Hardly.  If the Supreme Court upholds the D.C. Circuit’s ruling in Noel Canning, it will not only confirm the limitation on the executive branch’s power to sidestep the legislature and make appointments without its consent, but will force the NLRB to, once again, reexamine a year’s worth of decisions and issue new rulings with an official Senate-confirmed quorum.  If, on the other hand, the Supreme Court overrules the Noel Canning decision, it will officially expand the authority of the executive branch’s appointment powers.  And to start a new wave of controversy, on August 1, 2013, President Obama nominated Richard Griffin – the recess appointee whose place on the Board was booted by the new, Senate-confirmed appointees – to serve as the NLRB’s General Counsel, a role that some say is even stronger than a board member, as the General Counsel is the one who decides which labor cases to prosecute.[13]  In the meantime – while we wait for the Supreme Court to issue a decision on Noel Canning and the Senate’s reaction to Griffin’s nomination – the five-member, Senate-confirmed Board is expected to hear cases effectively and efficiently and issue decisions that will affect employees and employers throughout the country.

Archana R. Acharya is an Associate at Foley & Lardner LLP
and is a member of the firm’s Labor & Employment Practice Group.
aacharya@foley.com | 213-972-4560