How will the deal reached in the Senate regarding NLRB nominations impact the recess appointment dispute in the Noel Canning case pending at the U.S. Supreme Court, and the many other cases presenting the issue pending in the federal courts of appeals and at various stages before the Board? Below are some common questions and answers.
Q. When will the new Board be confirmed?
A. Senator Reid reportedly said that hearings on the nominations of Ms. Schiffer and Mr. Hirozawa are planned for July 23, and that the Senate will move to confirm all the NLRB nominees by month’s end. (As we reported here, the hearing on the nominations of Messrs. Pearce, Miscimmara and Johnson has already been held.)
Q. Will confirmation of the new Board moot the Noel Canning case and the others like it that are pending in various circuits?
A. It does not appear that the deal moots the recess appointment issue, based on the Supreme Court’s handling of the two member Board issue in the New Process Steel case. In 2010 the Supreme Court was considering the two member Board issue in New Process Steel, the President recess appointed two members (Mark Pearce and Craig Becker) to the NLRB, giving it what at the time was conceded to be a quorum (Becker’s appointment was recently held by the Third Circuit to have been invalid as a non-inter-session recess appointment). The Supreme Court asked for letter briefs on the mootness issue. Then Solicitor General (now Justice) Elena Kagan responded with a letter brief vigorously arguing that the case (and many others like it) was not made moot by the recess appointments. The Supreme Court went ahead and decided the case, finding that the two member Board did not have a sufficient quorum.
The circumstances today are nearly identical. The Board has decided hundreds of matters since the January 4, 2012 appointments (even more since Member Becker’s appointment), many of which are pending on appeal, and the validity of many if not all of those decisions hinges on the validity of those recess appointments, so there is a case or controversy with sufficient adversity to support the Court’s jurisdiction. Further, the issue has arisen in a case involving the Board, but the question is a Constitutional one affecting the relations and respective powers of the Legislative and Executive Branches. There is no obvious policy reason for the Supreme Court to look for a way to get rid of the case.
Q. What will happen to all of the cases decided by the recess appointed Board?
A. Following the New Process Steel decision, approximately 100 cases were returnedto the Board for re-decision. (The last of them was just re-decided in January, 2013.) In nearly all the cases the Board simply adopted the previous two member decision. If the Supreme Court rules in Noel Canning that the January, 2012 appointments were valid, the other decisions will simply be reviewed on their merits by the courts where they are pending, as usual. If the Supreme Court affirms the D.C. Circuit in Noel Canning, however, it is likely all of the pending cases will be – as after the New Process Steel decision – returned to the Board for re-decision. Unlike the two member Board, however, which decided all of its cases based on settled, existing law (thus avoiding the overruling of prior decisions or creation of new precedent), many of the cases decided by the current Board were very contentious and controversial. This may result in fewer simple adoptions and possibly more reversals on remand, depending on the make-up of the Board at the time.
Q. Will cases currently pending at various stages at the Board be affected?
A. This is not entirely clear. A variety of challenges have been made to the authority of Regional Directors, Administrative Law Judges, and the General Counsel, generally claiming that these officers lost their delegated authority to act on behalf of the Board while the Board lacked a quorum. The resolution of many of these challenges may depend on the resolution of (1) whether the loss of a Board quorum invalidates Board delegations to such officers, a question expressly left open by the Supreme Court in New Process Steel; and (2) the validity of appointments made by the Board (e.g., Regional Directors) when it lacked a lawful quorum, and the consequent validity or invalidity of the actions of such appointees. The questions are not presented directly in Noel Canning, which deals only with the authority of the Board members themselves. In any event, the myriad fact patterns involved make it difficult if not impossible to forecast how any given case might be treated (e.g., could a final non-Board settlement of a complaint issued by a Regional Director who lacked authority now be attacked by one of the settling parties?). Thus, the circumstances of each case would need to be known in order to make a considered assessment of what might happen to it.