As we explained in a November 2011 article, the National Labor Relations Board is supposed to have five members. Without a quorum of three members, the NLRB is unable to decide cases or issue regulations. At the end of 2011, the NLRB’s membership was about to drop to two members due to the expiration of the recess appointment of Craig Becker.

On January 4, 2012, the President purportedly made three recess appointments to the NLRB. Combined with the two incumbent NLRB members who had been confirmed by the Senate, this would have brought the NLRB back up to five members. Various employers challenged these recess appointments as unconstitutional, arguing primarily that the Senate was not in recess on January 4, 2012, because it was conducting pro forma sessions every three days.

On January 25, 2013, the United States Court of Appeals for the District of Columbia Circuit found these three recess appointments to the NLRB unconstitutional. The court first found it had jurisdiction to consider the validity of the recess appointments even though the employer had not attacked the recess appointments before the NLRB. Thus, employers who have not previously challenged the NLRB’s quorum may still challenge NLRB decisions issued without a valid quorum (at least in the District of Columbia Circuit where employers can always file appeals from NLRB decisions).

The court then found that recess appointments could only be made between sessions of Congress (the intersession recess), not a recess during a session of Congress (an intrasession recess). Because Congress had already started its next session by January 4, 2012, no recess appointments could be made.

The court also found that a recess appointment must be made during the same intersession recess in which the vacancy arose. The recess appointments at issue were invalid for this reason as well.

The court found that the recess appointments were void from their inception, so legally they never happened. As a result, every NLRB decision issued after January 3, 2012, is vulnerable to challenge. But the court’s decision reaches even further. Craig Becker received a recess appointment to the NLRB on March 27, 2010, when the Senate was in an intrasession recess. The NLRB vacancy Becker filled did not occur during that intrasession recess. So, all NLRB decisions involving Becker (who was on the NLRB from March 27, 2010 to January 3, 2012) are also at issue, potentially even if the employer did not previously attack Becker’s recess appointment. For example, the NLRB’s new election regulations designed to help unions (which have been struck down by a federal court for reasons unrelated to the validity of Becker’s recess appointment) would be void if Becker’s recess appointment was invalid.

The Supreme Court will likely resolve the validity of these recess appointments. If they were invalid, the NLRB could be forced to redo hundreds of decisions issued without a quorum, which could take years.

The solution to the quorum problem is for the President to nominate NLRB members who can be confirmed by the Senate. If the District of Columbia Circuit’s decision is upheld, then that is the only way for the current NLRB vacancies to be filled. Presidents have historically presented a package of Republican and Democratic nominees who the Senate confirms as a group. Currently, the President has nominated two Democrats and no Republicans for four NLRB vacancies. The only NLRB member who has been confirmed by the Senate is a Democrat whose term expires this August.

We will be closely monitoring this situation going forward. Meanwhile, employers who have been negatively affected in any way by the NLRB since March 27, 2010, should consult with counsel to see if the NLRB had a quorum at the relevant time.