It's Unanimous: Recent NLRB Appointments Ruled Unconstitutional

by LeClairRyan
Contact

In a unanimous opinion released on June 25, 2014 the United States Supreme Court held in NLRB v. Noel Canning et al. that President Obama's recess appointments to the National Labor Relations Board (NLRB) in January 2012 were an unconstitutional exercise of presidential power under the Recess Appointments Clause.

Background
The Canning case originated as a labor dispute between Pepsi-Cola distributor Noel Canning and a local union. The matter was heard by the NLRB, which decided that the distributor had unlawfully refused to execute a collective bargaining agreement with the union. The Board ordered Noel Canning to execute the agreement and make employees whole for any losses.

Noel Canning appealed the decision to the D.C. Circuit Court of Appeals. The employer argued that 3 out of 5 NLRB members had been invalidly appointed by President Obama in early 2012, and therefore the Board lacked a quorum when issuing its order. The appeals court agreed and vacated the Board's order against Noel Canning. The case was appealed to the U.S. Supreme Court.

Article II of the United States Constitution grants a number of specific powers to the President of the United States. The ability to nominate and appoint Officers of the United States, with the "Advice and Consent" of the Senate, is one of those powers. A second, related power is to "fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The Recess Appointments Clause thus creates an exception to the Advice and Consent Clause, under which the President can appoint Officers without having first obtained Senate approval.

In early January 2012, President Obama appointed 3 members to the NLRB while the Senate was on a 3-day intrasessional recess. The recess occurred between pro-forma sessions that the Senate had been convening every Tuesday and Friday since mid-December. When a pro forma session is held, the Senate is gaveled to order and then promptly adjourned. Legislators typically do not conduct any actual business during the session. The use of pro forma sessions increased during George H.W. Bush's presidency, and continued under President Obama.

It is generally understood that primary purpose of holding pro forma sessions is to block the President from making recess appointments that would not otherwise meet with Senate approval. That was certainly the case with the 3 Democratic Board members that President Obama appointed in January 2012. The NLRB sits with 5 members, so Obama's 3 recess appointments effectively stacked the Board with a majority likely to support the President's pro-union agenda.

The Supreme Court Interprets the Recess Appointments Clause
U.S. Presidents have used their recess appointment power during both intersessional and intrasessional recesses throughout history-- a history that is documented in great detail in the Canning decision. Despite its frequent use, however, this is the first time that the Supreme Court has had an opportunity to parse and interpret the language of the Recess Appointments Clause.

In Canning, both sides agreed that the 3-day recess period between January 3-6 alone was too short to trigger the president's recess appointments power. But the U.S. Solicitor General argued that President Obama's recess appointments to the Board were nonetheless valid because the Senate's pro forma sessions should be considered periods of recess. Because no actual business was conducted during the pro forma sessions, they were "sessions" in name only, and the Senate therefore had technically been in "recess" since mid-December when the Tuesday and Friday pro forma sessions began.

The Supreme Court disagreed with the Solicitor General's argument, finding that the Senate's pro forma sessions were not the equivalent of being in recess. To the contrary, the Court held that the Senate is in session "when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business." In other words, for purposes of determining whether the Senate is in session, it doesn't matter whether or not the Senate actually conducts business; what matters is that it could conduct business if it so chose.

Applying this analysis, the Court found that the Senate was only adjourned for 3 days when President Obama made his recess appointments to the NLRB, and the appointments were therefore unconstitutional and invalid. The Court then established a 10-day minimum for defining a recess -- whether intersessional or intrasessional -- based on historical practice.

What Happens Next?
The long-term implications of Canning could be significant, but the Supreme Court's opinion left many practical questions unanswered. For example, what happens to all of those decisions made by the NLRB when the 3 invalidly-appointed members were seated? Will those cases be reheard? Or will they simply be ratified? If so, when? And what happens to other recess appointments that were made by President Obama at the same time, and in the same unconstitutional manner, as the NLRB members (such as the appointment of the Director of the Consumer Financial Protection Bureau)? How will decisions related to those appointments be handled?

With many questions, but few answers, employers and businesses are largely stuck in limbo for the time being. Regarding cases that the NLRB decided while the unconstitutionally-appointed Board members were seated, it is up to the Board itself to decide what should be done now. So far, the NLRB has officially issued only one response to the decision -- a brief statement from the Chairman that reads: "We are analyzing the impact that the Court's decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today's decision as expeditiously as possible." In other words, they don't know what they'll do yet, but they're working on it.

Since the Board technically did not have a quorum for any of the decisions rendered between January 2012 and July 2013, it appears that none of those decisions could be enforced as they stand today, just as the NLRB’s order in the Canning case could not be enforced.

If the Board does choose to rehear decisions made from January 2012 to July 2013, the process could take a long time. Practically speaking, though, employers shouldn't expect very many changes to those decisions: the Board is still controlled by Democratic appointees, so the current majority is likely to rule on the voided cases in the same way that the invalidly-appointed Board did during the 19-month period.

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© LeClairRyan | Attorney Advertising

Written by:

LeClairRyan
Contact
more
less

LeClairRyan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.