Appeals Court Nixes President's Recess Appointments to NLRB Raising Question Whether Any NLRB Decisions Since 2011 Are Enforceable

In a 3-0 decision on January 25, the D.C. Circuit Court of Appeals held that a Board decision issued on February 8, 2012 was invalid because the Board failed to consist of a quorum of three validly appointed members. In February 2012 the Board had five members – Pearce and Hayes, who the Court found were validly appointed and confirmed by the Senate, and Block, Flynn and Griffin, who were appointed by President Obama in January 2012 as “recess” appointments. The Court held that the three recess appointments were constitutionally invalid, the Board lacked a quorum, and therefore the Board’s decision under review was invalid and unenforceable. Canning v. NLRB, No. 12-1115 (U.S. Ct. App. D.C.Cir. 2013). The key underpinning to this holding was the status of the U.S. Senate’s operations during the 2011 holiday season when the President made the contested appointments. The Court found that the Senate’s actions of passing an extension of the payroll tax on December 23, 2011 and then convening the second session of the 112th Congress on January 3, 2012, taken together dictated the conclusion that the Senate was not in recess on January 4, 2012 when the President made the recess appointments. The Court held that a valid recess appointment is limited to an intersession appointment – that is, an appointment between sessions of Congress. The NLRB conceded that the appointments were not made during an intersession recess and accordingly, the Court vacated the Board’s underlying decision. The Administration is sure to appeal the Court’s decision. Board Chairman Pearce has stated that he disagrees with the Court’s decision, the Board will continue to issue decisions, and anyway the decision is limited to one Board decision and order. In fact, the number of Board decisions whose validity is now in question is 219, since the Board failed to have a quorum of three Senate-confirmed members throughout 2012. The Board presently consists of three members, since Member Flynn resigned in 2012 and Member Hayes’ term expired last month. Two of the three current Board Members are recess appointees. For more information on the practical implications of the Court’s decision and strategy recommendations in view of the Board’s precarious situation, please contact Patrick McGovern, Esq., pmcgovern@genovaburns.com in the Labor Law Practice Group.