On June 26, 2014, the U.S. Supreme Court issued its opinion in the case National Labor Relations Board v. Noel Canning, invalidating the 2012 appointment of three members of the National Labor Relations Board by President Obama – and the over 1,000 decisions made by the Board while it included the invalidly appointed members.
Generally, “Officers of the United States” such as members of the NLRB must be appointed by the President with the consent of the Senate. However, the President can fill vacancies without getting approval from the Senate when the Senate is in recess. As a practical matter, this prevents important government offices from being vacant while the Senate is on a break.
In January 2012, President Obama made three appointments to the NLRB during what he characterized as a recess of the Senate. In February 2012, the NLRB, including the three recess-appointed members, determined that Noel Canning, a Pepsi distributor, had violated the National Labor Relations Act. Noel Canning asked the court of appeals and then the U.S. Supreme Court to set aside the ruling of the NLRB. Noel Canning argued that the NLRB must have five members in order to have a quorum to issue valid opinions, but that at the time it rendered the decision against it, the Board did not have a quorum because the three “recess appointments” were not valid. Specifically, Noel Canning argued that the appointments were invalid because the three-day adjournment between two sessions of the Senate was not long enough to trigger the President’s right to make a recess appointment.
In its decision, the Supreme Court ruled that the appointments were indeed invalid because at the time they were made, the Senate was not in recess. In short, the Supreme Court ruled that the Senate is in session when it says it is in session – and it said it was in session at the time the three Board appointments were made. As a result, the appointments required Senate approval to be valid.
The Board issued just over 1,000 opinions from January 4, 2012 until August 12, 2013 (when a fully Senate-confirmed Board went into place). Those opinions are now negated by the Supreme Court’s decision in Noel Canning, including controversial decisions in Banner Health System where the Board held that an employer cannot prohibit employees from discussing ongoing investigations, and Hispanic United of Buffalo where the Board held that a non-union employer’s firing of employees for posting harassing Facebook comments violated the National Labor Relations Act.
The Board has stated that it is currently analyzing the impact of the ruling, but has not made a decision as to how to proceed. The Board could decide to review each of the decisions and re-issue determinations. This would create a serious backlog as the Board worked through each of the cases. It is more likely that the Board will simply adopt each of the prior rulings. We will provide an update when the Board announces its plan.