In a unanimous decision of all nine justices, the Supreme Court, in Noel Canning v. NLRB, today held that the three recess appointments President Obama made to the National Labor Relations Board in January of 2012 were unconstitutional. This ruling will force the NLRB to revisit a tremendous number of its decisions made since 2012 involving these invalidly-appointed Board members.
Justice Stephen Breyer, writing for the Court, held that the recess appointments of Terence Flynn, Richard Griffin and Sharon Block did not pass constitutional muster because the Senate was not actually in recess when they were appointed. He concluded that the Senate’s pro forma sessions were valid and the Senate was not in recess. The Opinion basically states that the Senate gets to determine when the Senate is in recess, provided the recess is of sufficient length -- the President does not get to make this determination. On a going forward basis, this decision provides Congress the ability to prevent recess appointments.
Although the NLRB currently has a full complement of five Senate-confirmed members, scores of its decisions issued when the disputed recess appointees were on the Board, and possibly those issued during the term of prior recess appointee Craig Becker, were invalidly decided. The high court previously had ruled that the NLRB requires a three-member quorum to operate and vote. Thus, the Noel Canning decision means that those litigants involved in the many cases deemed inappropriately decided shall now have “new days” in court, and decisions by which the Board revised or established precedent which it expected employers to follow now go by the wayside as invalid and meaningless, at least for the time being.
The NLRB is now left with the daunting task of having to re-adjudicate all of its decisions deemed invalid by the nation’s highest court. While the current composition of the Board would suggest that its revisiting these prior decisions may result in the same outcomes of the invalid cases, some cases may fall away by way of settlement or otherwise, meaning the Board may have to wait for new opportunities to establish the “rules of law” that it believed it had set through these invalidly-decided cases.
For the time being, the Board has a mess on its hands.