Will All 2012 NLRB Decisions Be Invalidated?

Written by Robert G. Brody and Abby M. Warren on February 20, 2013

The U.S. Court of Appeals for the D.C. Circuit just ruled that three appointments to the National Labor Relations Board (NLRB) made by President Obama on January 4, 2012, were unconstitutional.

At the time the appointments were made, Congress had been holding “pro forma sessions” every three days with an agreement that business would not be conducted.  At this time, President Obama made three appointments to the NLRB and one to the Consumer Financial Protection Bureau all without the advice and consent of the Senate as normally required by the Constitution.  President Obama relied on the Recess Appointments Clause of the Constitution that allows the president to fill vacancies without the advice and consent of the Senate if the Senate is “in recess.”  The Obama Administration filled the NLRB vacancies using an “intrasession interpretation” of the Recess Appointments Clause meaning that while Congress was not technically in between sessions, in reality Congress was in recess and therefore the advice and consent of the Senate was unnecessary.

The Court found the President ignored the “advice and consent” role of the Senate because the Senate was actually in session.  The Court found it persuasive that “intrasession recess” appointments were rarely made in the first 150 years of the Republic and believed this history suggested the absence of such power.  The Court indicated it is more persuasive to observe how administrations closer in time to the Framers of the Constitution interpreted certain powers rather than looking at the interpretations of modern administrations.

The Court also looked to historical writings, like the Federalist Papers, to determine that the “general mode” of appointments was with the advice and consent of the Senate.  The intersession recess appointments were only a stopgap supplement for when the “general mode” was unavailable.  At the time of the Constitution, intersession recess could be anywhere from six to nine months long.  Accordingly, it was necessary at that time to allow the president to make appointments so that the government would not be paralyzed while waiting for Congress to return.  The Court held the Recess Appointments Clause only applies to intersession recesses.  Since these appointments were made a day after a new session had begun they could not have been made under the Recess Appointments Clause.

The Court also offered another basis to void the appointment.  The Court held that under the Recess Appointments Clause, the president can only fill vacancies that arise during that particular recess.  The three vacancies at issue arose on January 3, 2012, August 27, 2011, and August 27, 2010.  Since none arose during the then current recess, President Obama did not have the power to fill any of those vacancies using the Recess Appointments Clause.

This decision could mean that an entire year’s worth of decisions made by the NLRB could be invalidated.  The NLRB can only take action when it has quorum which is at least three of its five members.  This decision held that only two NLRB appointments were valid throughout most of 2012 and therefore any decision made by the NLRB lacked a quorum.  The Court in this decision did not address this issue but we expect in the coming weeks there may be some indication of how the NLRB will handle this.

The last time the NLRB faced a similar issue was June 17, 2010.  At that time, 600 decisions were invalidated.  At that time, the NLRB remanded 96 of those cases that were pending before various circuits of the U.S. Court of Appeals and the Supreme Courts within two weeks of the decision.  A month later, the NLRB issued a press release announcing a database containing a list of all contested cases.  In many cases, the invalidated NLRB decisions were reviewed and rubber stamped by the properly constituted NLRB.  We expect the NLRB to issue press releases with similar guidance in this instance as well.

Brody and Associates regularly advises its clients on all labor management issues and provides various related training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

About the Authors

Robert G. Brody is the founding member of Brody and Associates, LLC. He has been quoted and published in national publications and appears as a guest T.V. commentator on contemporary Labor and Employment issues. Learn More

Abby M. Warren is an Associate with Brody and Associates, LLC. She works on both Labor and Employment Law matters. Abby worked at the New Haven Superior Court. Learn More