HR Management & Compliance

Obama’s three NLRB recess appointments were invalid, Supreme Court rules

On June 26, 2014, the U.S Supreme Court unanimously upheld the decision of the U.S. Court of Appeals for the District of Columbia Circuit in Noel Canning v. NLRB, concluding that President Barack Obama’s three recess appointments to the National Labor Relations Board (NLRB)—Sharon Block, Richard Griffin, and Terence Flynn—were not valid.  Accordingly, since three out of the five members were invalidly appointed, the NLRB lacked a quorum.  That means Board decisions, including union-friendly rulings on social media, confidentiality rules, and off-duty employee access to the workplace, are now affected and likely invalid

In January 2012, President Obama filled three vacancies on the NLRB while the Senate was on its 20-day holiday break. Republicans objected to the president’s appointments, claiming the Senate wasn’t in recess because it was holding pro forma sessions every few days.

Why did the president unilaterally make these appointments? The U.S. Constitution provides that the Senate must consent to the president’s nominees to federal offices such as the NLRB. It also gives the president the authority to fill vacancies that “may happen” during the Senate’s recess that “shall expire at the end of the next session. ”

The appeals court unanimously agreed that the Senate was not in recess when the president made the appointments. A majority also found that the vacancies did not “happen” during the recess, further supporting the conclusion that the appointments were unconstitutional.

The Supreme Court agreed that the president of the United States does have the right to make recess appointments when the Senate is not available. However, the Court warned that such authority was not meant to provide the president with the ability to avoid the need for Senate confirmation.

In this case, although most of its members were on vacation, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. In accordance with that resolution, the Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23.

So, technically, according to the Supreme Court, the Senate was in adjournment only for three days at a time when the appointments were made, and that wasn’t a sufficient amount of time for the president to avoid a formal Senate confirmation. Therefore, his recess appointments were not valid.

What does this ruling mean for employers? In short, it’s not clear, but it looks like the decisions the NLRB made with President Obama’s appointees are invalid. This ruling also will make a lot of work for the current NLRB. We will keep you updated with more information.


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