NLRB ratifies some actions taken with recess appointees

The National Labor Relations Board (NLRB) has announced that it has ratified some of the actions it took while it was made up of mostly recess appointees who have since been judged to be invalid. However, the ratification likely won’t have any effect on the cases decided during that time, according to John P. Hasman, a partner in the St. Louis office of Armstrong Teasdale.

In a statement released August 4, the Board said that on July 18, it unanimously ratified all administrative, personnel, and procurement actions it took while it was operating with the recess appointees—January 4, 2012, to August 5, 2013.

President Barack Obama filled three vacancies on the five-member NLRB in January 2012 while the Senate was on its 20-day holiday break. The U.S. Constitution requires that the Senate approve the president’s nominees to agencies such as the NLRB and gives the president the authority to fill vacancies that “may happen” during a Senate recess. The Board vacancies didn’t occur during the break, but the Senate failed to act on Obama’s earlier nominees.

Although most members of the Senate were on break, the Senate wasn’t in an official recess. Instead, it remained in pro forma session, meaning some type of session was held every few days.

On June 26, 2014, the U.S. Supreme Court unanimously upheld an appeals court’s decision in Noel Canning v. NLRB, concluding that the three recess appointees—Democrats Sharon Block and Richard Griffin and Republican Terence Flynn—were not valid.

The Noel Canning decision means all NLRB decisions made from January 4, 2012, to August 5, 2013, are likely invalid. By ratifying the administrative, personnel, and procurement matters, the Board addressed the “low hanging fruit” of steps it needs to take in the wake of the Noel Canning decision, Hasman says.

“Since [the Board’s most recent] action did not directly impact a case or Board law, it was easier for the Board to adopt the procedural actions of the unconstitutionally appointed Board,” Hasman says. “It was an important and necessary step for sure, but the Board will have to take a more deliberate approach to cases and give the new Board members a chance to review those cases.”