The U.S. Court of Appeals for the District of Columbia today invalidated President Obama’s 2012 "recess" appointments of several members of the National Labor Relations Board ("NLRB" or "Board"). Today’s decision creates even more uncertainty in federal labor law, an area that has been subject to intense political battles and resulting in tremendous flux over the past few years.
About The Board And Recess Appointments
The Board consists of five Members, each appointed by the President and subject to Senate confirmation. Historically, the President fills three of the five seats with members from his party, giving his party majority control.
But since 2007, the appointment process has been broken. In late 2007, the appointments of three Members expired, and political wrangling left those seats unfilled for 27 months. The remaining two Members (one from each party) continued the Board’s business. In 2010, however, the United States Supreme Court ruled in New Process Steel v. NLRB that the Board must have a quorum of 3 to take action, invalidating hundreds of decisions issued by the 2-Member Board.
The Supreme Court’s decision did not break the logjam in the appointment process. As a result, on January 4, 2012, President Obama bypassed the Senate by making three “Recess” appointments to the Board. We blogged about the politics of those appointments here.
The problem, according to a decision issued by the D.C. Circuit today, Canning v. NLRB, is that the Senate was not in recess when those appointments were made, and the appointments were therefore “invalid from their inception.” Today’s decision, unless reversed, invalidates another year’s worth of Board decisions, requiring the next Board (whenever it comes into being) to revisit and reissue another large set of decisions. It of course also creates more uncertainty for employers trying to keep up with yet another potentially dramatic shift in interpretations of labor laws.
Importantly, it also prevents the current “Board” – comprised of 3 pro-labor Members, 2 of whom were invalidly given “Recess” appointments – from continuing to advance their decidedly pro-labor agenda, which we’ve blogged about recently here and here. Until the President and Senate come together to fill the vacancies, or until the next valid Recess, the Board will consist of a single Member (Chairman Mark Gaston Pearce), who cannot take action.