The US Supreme Court recently found President Obama lacked the authority to make 3 recess appointments to the National Labor Relations Board in January 2012.  It held the appointments invalid because the Senate was not in a “recess” at the time but rather was holding pro forma sessions every three days for weeks in a row.  NLRB v. Noel Canning (6/26/2014).

In Noel Canning, the Supreme Court unanimously affirmed a federal appeals court decision finding an NLRB order against an employer invalid because the board lacked a quorum.  Because the recess appointments in 2012 violated the Constitution, 3 of the 5 members of the board had no authority to act.  The decision followed the Supreme Court’s earlier ruling in New Process Steel LP v. NLRB, 130 S. Ct. 2635 (2010), where it held the NLRB board cannot act with fewer than 3 members.

How this decision will impact other NLRB decisions remains to be seen.  NLRB Chairman Mark Gaston Pearce issued a statement indicating that they are ” analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated.”   About 700 published and unpublished NLRB decisions were issued between January 2012 and August 2013 by votes of the recess appointees.  Some of those decisions modified or overruled prior precedent, including the Banner Health System case restricting general confidentiality requirements during internal investigations, which my colleague Charla Stevens discussed in an earlier post.

It is expected that many who lost a case during that time period will ask to be reheard.  Some predict, however, that the Democratic majority on the current Board may not result in any changes of opinions.  And other decisions made by those recess appointees – for example any regional director appointments or authorizations given to General Counsel – will likely be challenged as well.

At issue in Noel Canning was the interpretation of the US Constitution’s recess-appointments clause.   The clause, in Article II, reads:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

While unanimous in finding the appointments invalid, the Court divided 5-4 on defining the powers of a president to make recess appointments that normally require the consent of the Senate.  Justice Breyer who wrote the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan found that the president may make appointments without Senate confirmation during recesses but cannot act during Senate recesses of less than three days, and “presumptively” cannot make a recess appointment during a recess of less than 10 days.  Justice Scalia, joined by Chief Justice Roberts and Justices Thomas and Alito, wrote a concurring opinion and argued that the language only allows recess appointments between Senate sessions and then limited only to vacancies that arise during the recess between Senate session in which they are filled.

At this point, we will wait and see what happens to the decisions made in that 20 month period.