Today, the United States Court of Appeals for the D.C. Circuit ruled that President Obama’s recess appointments of three members to the National Labor Relations Board (“NLRB”) in January 2012 violated the United States Constitution. The Court, in Noel Canning v. NLRB, No. 12-1153 (January 25, 2013), ruled that the President unconstitutionally circumvented the Senate when he appointed Sharon Block, Terence Flynn, and Richard Griffin to the Board. As a result, every NLRB decision issued since January 4, 2012, is likely to be vacated because the NLRB did not have the three member quorum required to operate.
The President appointed Block, Flynn, and Griffin to the NLRB on January 4, 2012, as “recess appointments.” Because NLRB members are officers of the U.S. Government, the Constitution requires that the President submit nominations for the NLRB to the U.S. Senate for confirmation. The Constitution allows the President to make appointments during “the Recess” of the Senate, which has historically been understood as times when the Senate is unavailable to consider the nominee. On January 4, 2012, the Senate was operating pursuant to a unanimous consent agreement which provided that it would meet in sessions every three business days from December 2011 through January 2012. During this time, the Senate conducted some limited business, including convening the second session of the 122nd Congress on January 3, 2012.
In February 2012, an NLRB panel including two members appointed during “the recess” without Senate approval ruled that employer Noel Canning, a bottler and distributor, violated the National Labor Relations Act. Noel Canning appealed the decision and asserted that the NLRB’s decision must be vacated as it did not have a lawful, constitutionally legitimate quorum.
The D.C. Circuit agreed, held that the President’s recess appointments were unconstitutional, and vacated the NLRB’s decision. The Court noted that, “Considering the text, history, and structure of the Constitution, these appointments were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.” The Court further found that, under the Constitution, “recess” refers to the intercession recesses - or the period between sessions of the Senate when the Senate is, by definition, not in session and is unavailable to consider presidential nominations. As the Court explained, the President made the “recess” appointments on January 4, 2012, the day after Congress began a new session and not when the Senate was in “the recess.” The Court vacated the NLRB’s decision against Noel Canning because the Board did not have the minimum of three members needed for a quorum when the decision issued.
The implications of this decision are enormous. The Obama Administration will almost certainly appeal to the United States Supreme Court. If the decision stands, then hundreds of decisions which the Board has issued over the past year would become invalid. It also would leave the Board with just one validly appointed member out of five, essentially shutting it down until a legitimate quorum of three members exists.
Among the Board decisions which are subject to challenge under today’s ruling are:
- Costco Wholesale Corp., 358 NLRB No. 106 (September 7, 2012) (employer policy which prohibits employees from making statements on social media that could damage the company or other employees’ reputations unlawful);
- Knauz BMW, Case No. 13-CA-046562 (September 28, 2012) (employer policy proscribing employee messages and communications potentially critical of the company deemed unlawful);
- WKYC-TV, Inc., 359 NLRB No. 30 (December 12, 2012) (contractual dues deduction provisions continue after the expiration of a collective bargaining agreement);
- Alan Ritchey, Inc., 359 N.L.R.B. No. 40 (2012)(December 14, 2012) (employers must give notice and offer to bargain before enforcing discretionary discipline on employees of a newly-certified union);
- Supply Technologies, LLC, 359 N.L.R.B. No. 38 (2012) (December 14, 2012) (mandatory dispute resolution program that does not expressly state that employees retain the right to file NLRB charges unlawful.)
- Piedmont Gardens, 359 NLRB No. 46 (December 15, 2012) (employer blanket policies protecting confidential employee investigation statements unlawful).
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, appears before the National Labor Relations Board and practices in all areas of private and public sector labor relations. For more information about the NLRB or labor & employment law, please contact Pat (pjh@zrlaw.com) at 216.696.4441.