The U.S. Supreme Court issued its long-awaited opinion in Noel Canning v. NLRB this morning, upholding the D.C. Circuit’s finding that the President’s three recess appointments to the National Labor Relations Board when the Senate was still holding pro forma sessions were invalid. The decision, however, is a relatively narrow one, upholding the President’s ability under the Constitution’s Recess Appointments Clause to “fill any existing vacancy during any recess—intra-session or intersession—of sufficient length.” The problem with the NLRB appointments, therefore, was that the recess was of insufficient length. The appointments at issue were made on January 4, 2012, while the Senate was operating in pro forma sessions, meeting every third business day but conducting no substantive business. According to the Court, the Recess Appointments Clause “does not say how long a recess must be in order to fall within the Clause, but even the Solicitor General concedes that a 3-day recess would be too short.” Moreover, the Court noted that “[f]or purposes of the Recess Appointments Clause, the Senate is in session when it says that it is.” The scope of Presidential powers aside, the practical impact of this decision is that potentially hundreds of Board decisions issued by the recess appointees are invalid and must now be re-examined.
The three NLRB recess appointees were Richard Griffin, Sharon Block, and Terence Flynn. Facing the impending loss of a quorum at the Board, the President appointed these three to the agency in January 2012 while the Senate was still holding brief pro forma sessions. During their tenure, the Board issued several notable and controversial cases, as discussed in this January 2013 article. Such cases include Piedmont Gardens (Board reversed 34 year-old precedent exempting witness statements gathered from an employer's internal investigation from disclosure to unions under Section 8(a)(5) of the NLRA); Banner Health System (employer must establish a specific legitimate business justification for requiring employees to maintain confidentiality during internal investigations of employee complaints); Alan Ritchey, Inc. (newly unionized employer has a duty to bargain with a union before imposing discretionary discipline on an employee even though a first collective bargaining agreement has not been negotiated); and Supply Technologies, LLC (nonunion employer's mandatory arbitration policy was invalid because it interfered with employees' Section 7 rights), among many others.
Board Member Nancy Schiffer’s term expires on December 16, 2014, which will create a new vacancy that the President may find very difficult to fill. Therefore, it is likely that the Board will be very busy over the next six months.