As part of its end of term productivity, on Thursday, June 26, 2014, the Supreme Court issued its much anticipated decision in NLRB v. Noel Canning, regarding President Obama’s authority to grant recess appointments to fill vacant Board positions and avoid the Senate confirmation process of those Board members. The Noel Canning decision specifically involved President Obama’s recess appointments of Sharon Block, Terence Flynn, and Richard Griffin to the NLRB. A unanimous Supreme Court held those appointments were unconstitutional because they were beyond the President’s recess appointments authority.
In January 2012, membership on the NLRB dropped to two. As such, the Board lacked the quorum necessary for it to take action. On January 4, 2012, President Obama invoked the Recess Appointments Clause of the U.S. Constitution and appointed members Block, Flynn, and Griffin to fill the vacancies. Notably, Obama made these appointments during a three-day adjournment between pro forma sessions of the Senate. The seats filled by the recess appointees were refilled in August 2013 by members confirmed by the Senate.
With the three recess appointed members in place, the Board decided Noel Canning in favor of the union, and held that the company committed an unfair labor practice when it refused to sign a written agreement after having reached a verbal agreement with the union. Noel Canning filed a petition for review of the decision, and the union cross-petitioned for enforcement. The U.S. Court of Appeals for the D.C. Circuit held that the Board’s decision was not valid because President Obama’s three recess appointments were unconstitutional.
Focusing on, among other issues, the length of time of the three-day adjournment, the Supreme Court held three days was not a sufficient time period to trigger the Recess Appointments Clause, explaining that “a three-day break is not a significant interruption of legislative business” and that a “Senate recess that is so short that it does not require the consent of the House … is not long enough to trigger the president’s recess appointment power.” The Court concluded that a recess of more than three days but less than ten days is “presumptively too short” to trigger the Recess Appointments Clause.
As a result, we should expect the floodgates to open to a proliferation of challenges [by employers] to any NLRB decision in which Members Block, Flynn, and/or Griffin participated, arguing those decisions are presumably are invalid. Process suggests that the current NLRB, which does have a fully staffed and Senate-confirmed set of Members, and a Democratic majority, will consider anew each of the decisions previously issued in those cases. Because of the Democratic presence on the current Board, it seems likely that any reconsideration decisions will remain in line with the decision of the Obama recess Board.
Beyond the Board decisions that are expected to be challenged and invalidated, other agency action involving Members Block, Flynn or Griffin may also be invalid, including appointments of Regional Directors and Administrative Law Judges. Decisions issued by such appointed Regional Directors or ALJs may also be deemed invalid. Employers would be wise to raise the issue in any event.
The Noel Canning decision will burden the NLRB, already battling a considerable backlog of pending cases. While many employers may have an individual stake in the game, there are some notable decisions that have had widespread impact on employers, which will now be reconsidered, including the slew of Facebook firing/social media decisions; an employer’s ability to issue and enforce reasonable rules regarding employee behavior at work or to limit access to its facilities by off-duty employees; an employer’s obligation to continue dues deduction after the CBA expires; whether there is a duty to bargain discipline during a first contract negotiation; and the propriety and scope of confidentiality instructions to employees during workplace investigations.
NLRB Chairman Mark Pearce offered the following statement regarding the Noel Canning decision: “The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”