Three NLRB Members Not Valid Recess Appointments
As we predicted last year, President Obama’s three recess appointments to the NLRB faced a significant constitutional legal challenge. On January 25, 2012, the U. S. Court of Appeals for the District of Columbia in a unanimous opinion ruled that the president’s recess appointments to the NLRB in 2012 were unconstitutional. This means that the normal complement of the five-member NLRB was left with just two members. Two members are not sufficient to constitute a quorum (according to the Supreme Court), and therefore the NLRB cannot legitimately take any official action. This decision – which will end up in the Supreme Court for review – has far reaching consequences not only for cases arising before the NLRB but for all future presidential recess appointments to any federal agency.
When Is It Time for Recess?
The 47-page opinion of the court is a tutorial in how the U. S. Constitution has been and should be interpreted. It all begins with the precise language of the “Recess Appointments” clause. Article II, Section 2, Clause 3 states:
The President shall have Power 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 court focused on the highlighted words. Relying on historical dictionary definitions from the time of the Constitution’s ratification, the writings of the founders in the Federalist Papers and a grammatical analysis of “the” Recess as opposed to “a” recess, the court concluded that the Senate had not gone into “the Recess” when the president made the three NLRB appointments on January 4, 2012. Because of that, the NLRB “recess” appointments were not constitutionally valid. Further, the court held that the vacancies that were being filled did not “happen” during the Recess. So, in this case involving an employer that had been found to have failed to bargain in good faith with a union, the NLRB’s order to bargain was held to be unenforceable because three members were not validly appointed during the recess, and consequently the NLRB lacked the required quorum to act.
What Happens Now?
On the day the court’s decision was issued, the NLRB’s Chairman Mark Gaston Pearce stated in an official announcement that this decision was just one of over a dozen other pending cases challenging the appointments and that he “respectfully” disagrees with the court’s decision. He predicts that the president’s position would ultimately be upheld. In the meantime, he promised that the NLRB will continue to do its work and issue decisions.
Needless to say, the uncertainty surrounding the validity of all NLRB actions since January 4, 2012 (and there have been many controversial ones) will continue to linger until the Supreme Court ultimately decides the scope of executive power to make appointments to vacancies that “happen” during “the Recess” of the Senate. That could take at least a year.
In the meantime, private employers should understand that the NLRB will continue to be actively pursuing what it sees as its duty to decide cases, issue orders and adopt regulations unless and until it is told otherwise by the Supreme Court.
Reference: Noel Canning v. NLRB, (D.C. Cir., No. 12-1115, January 25, 2013).
If you have any questions, please contact Steve Lyman at slyman@wp.hallrender.com or your regular Hall Render attorney.
