U.S. Supreme Court Invalidates President Obama’s Recess Appointments of NLRB Board Members

The United States Supreme Court has ruled, in the much awaited Noel Canning case, that President Obama did not have the right to make so-called “recess appointments” of Sharon Block, Richard Griffin,  and Terence Flynn to the NLRB in 2012. Therefore, any decisions made by the NLRB in which the three participated will have to be reviewed and addressed somehow, in ways yet to be determined, by the current lawfully appointed NLRB members (all five members of the NLRB currently serving have been lawfully appointed so they have the power to address these Block/Flynn/Griffin questionable cases).

The case began when an NLRB Administrative Law Judge ruled against a company called Noel Canning, saying the company committed unfair labor practices. The company appealed this to the NLRB in Washington, DC, and when the Board affirmed the ALJ’s Opinion, the company appealed this, arguing that the three had been improperly appointed to the NLRB by President Obama and therefore their decision was not valid and binding.

The Supreme Court agreed with the company, but on very narrow grounds. The Court decided, 9-0, that the President definitely has the power to make “recess appointments”, because the Constitution expressly states that he has the power to make appointments that ordinarily need Senate “advise and consent” (including appointments to the NLRB), when the Senate is in “recess.” But the Court said that these appointments of Block, Flynn, and Griffin were made when the Senate was in a very short 3-day recess, which is not the kind of recess the Founders had in mind when they drafted the Constitution. The Court, with Justice Breyer writing the Opinion, said that recesses of 3 to 10 days are too short for the President to use to make recess appointments, but they can still be made during longer recesses of the Senate.

The ruling has two relevant and immediate impacts: as for the NLRB, some determination will have to be made as to which cases and administrative actions Block and Flynn participated in, and something will have to be done to re-consider those, by the current NLRB.  Perhaps more important in the long run, the Senate will be able to stop a President from making “recess appointments” by doing what the Senate did to President Obama in this case – simply taking short recesses only, gaveling the Senate back to order every 3 days during longer breaks and vacation periods, so that he cannot fill critical positions in the government, and then when the Senate comes back in full session, it can try to use filibusters to stop appointments. But even this may not matter too much, since the Democrats, under Senator Harry Reid, modified the filibuster rule on Presidential appointments, so that it only takes 51 votes to approve an appointment, instead of the former 61 “filibuster-proof” votes it used to take.

Overall, it seems fair to say this will cause some bureaucratic inconvenience for the NLRB as it sifts through what happened when the three were on the Board, and therefore what has to be re-addressed, but that’s the only immediate impact this will have on labor law issues.

For further information, contact your labor law counsel.

By Bill Sokol | June 26, 2014

Legal Developments