The U.S. Supreme Court has held that three recess appointments made by President Obama to the National Labor Relations Board (“NLRB”) in January 2012 were unconstitutional. The decision calls into question the rulings from the NLRB during the time period when the disputed recess appointees were on the board.

Case Background 

After the NLRB found that a Pepsi-Cola distributor had unlawfully refused to reduce to a collective-bargaining agreement to writing, the distributor appealed to the D.C. Circuit Court of Appeals to request that the NLRB’s order be set aside. In its appeal, the distributor alleged that three of the five NLRB members had been invalidly appointed, leaving the NLRB without the three lawfully appointed members necessary for it to act. 

The three members in question had been appointed by the President on January 4, 2012, by way of the Recess Appointments Clause (“Clause”). The United States Constitution generally requires Senate approval of certain Presidential nominees (including NLRB members). However, the Clause, found in Article II, § 2, cl. 3 of the Constitution, permits the President to fill vacancies during a Senate recess. In its appeal, the distributor pointed out that the Senate had held pro forma sessions every Tuesday and Friday between December 17, 2011 and January 23, 2012, such that the January 4, 2012 appointments were made between the January 3 and January 6 pro forma sessions. The distributor argued that each pro forma session terminated the immediately preceding recess, and the 3-day adjournment between January 3 and January 6 was not long enough to enable President Obama to rely on the Clause. 

In January 2013, the D.C. Circuit Court of Appeals issued a broad ruling holding that the recess appointments of the three NLRB members were not valid, because (1) recess appointments could only occur during breaks of enumerated sessions of Congress (not during intrasession breaks) and (2) the President could not use recess appointments to fill vacancies that had opened before the recess occurred. The NLRB appealed to the U.S. Supreme Court. 

Supreme Court’s Holding

The U.S. Supreme Court held that the President’s recess appointments were invalid. Although the Court was unanimous in its outcome, it was divided 5:4 in its reasoning. The majority opinion, authored by Justice Breyer, generally found that a congressional break has to be at least 10 days to be considered a recess during which time the President can exercise his power under the Clause. The majority rejected the lower court’s holding that recess appointments cannot occur during intrasession breaks and that they may only be used to fill vacancies that opened during the recess itself, however, saying that such a ruling would be too disruptive to the balance of power in Washington and at odds with “centuries of history.” The minority opinion, authored by Justice Scalia, would have upheld the decision of the lower court in not allowing recess appointments during intrasession breaks and not allowing recess appointments to fill vacancies that had opened before the recess occurred.

The majority reasoned that the Senate is in session when it says it is, provided that it retains the capacity to transact business during that time. Under this standard, the majority held that the Senate was in session during the pro forma sessions at issue here. Further, although the clause does not say how long a recess must be in order to fall within the Clause, based on the historical practice, the majority found a recess of more than 3 days but less than 10 days is presumptively too short to fall within the Clause. Here, the majority determined that the three-day period between January 3 and January 6 was too short a time to bring a recess within the scope of the Clause, and so held that the President lacked the authority to make the appointments in question.

Impact of the Decision

In its opinion, the Supreme Court did not specifically address the legality of the actions that the NLRB had taken when its quorum was made up of disputed recess appointees. However, in New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635 (2010), the Supreme Court previously held that the NLRB lacked authority to issue any rulings unless there were three members sitting on the board. Today’s decision found that the three members appointed in January 2012 were not validly appointed. Thus, there is a question about whether the NLRB decisions from January 2012 through August 2013 must all be vacated.

Nevertheless, with the current slate of NLRB members having been confirmed in August 2013, and with a 3:2 Democratic majority in place until 2018 (absent any departures), the current NLRB has the votes to reach the same results as the prior board, assuming, that is, the current board has the power to simply review the prior decisions. In any case, to the extent a litigant lost before the NLRB between January 2012 and August 2013, or had ALJ cases decided or took actions based on decisions issued in that time frame, it may be worth revisiting and exploring the impact in more depth.