In a rare 9-0 decision issued today, the United States Supreme Court invalidated the recess appointments President Obama made to the NLRB on January 4, 2012, while the Senate was in a three day recess. The decision in National Labor Relations Board v. Noel Canning (USSC June 26, 2014) means that the NLRB was operating without the requisite three member quorum for a significant period of time in which it issued sweeping changes to NLRB case law.
The Supreme Court decision goes into detail explaining the purpose of the Recess Appointments Clause of the United States Constitution. Justice Breyer, who authored the opinion noted, to say the very least, this was a case of first impression:
We have not previously interpreted the [Recess Appointment] Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.
The Court invalidated the recess appointments on substantially narrower grounds than the DC Circuit’s prior opinion. The court held that a recess lasting only three days, or even as many as ten days, was not long enough for a president to exercise the recess appointment power. The opinion strongly suggests, however, that recesses of longer than ten days might be sufficient.
The real significance, of course, is that a number of decisions rendering sweeping changes to the interpretation of the National Labor Relations Act were rendered by Labor Board panels comprised of at least one individual out of three whose recess appointment has now been deemed invalid. This means that those decisions, for the time being, are rendered a nullity and the law as it existed prior to the decisions being rendered should be applied, which necessarily would result in a resetting of many cases. Of course, it is more complicated than that. Chairman of the NLRB Mark Pearce was on all of those panels (holding the only valid appointment) and so it seems likely that many of the decisions will be re-affirmed by the current Board which is comprised of Senate confirmed, valid appointees.
Among the decisions that have been called into doubt are:
Alan Ritchey, Inc., 359 NLRB No. 40 (Dec. 14, 2012) – imposing an obligation to bargain over the “discretionary” aspects of discipline prior to issuance in cases where the union is newly certified and bargaining for an initial contract is underway.
WKYC-TV, 359 NLRB No. 30 (Dec. 12, 2012) – where the NLRB discarded over 50 years of precedent and held that dues checkoff clauses survive the expiration of the agreement.
Fresenius USA Manufacturing, Inc., 358 NLRB 138 (Sept. 19, 2012) – holding that while an employer’s investigation into a harassment complaint was entirely lawful, its discipline of a union member for writing a vulgar term was unlawful because the activity was “protected” by the NLRA.
American Baptist Homes of the West, 359 NLRB No. 46 (Dec. 16, 2012) – Requiring employers to turn over witness statements as part of the duty to provide information to the union, overruling longstanding precedent stating such statements could be withheld.
Many employers are currently defending cases before the NLRB that involve invalidated decisions. How these cases are handled going forward remains to be seen. For example, employers that did not engage in pre-discipline bargaining during the period between certification and a new agreement for all intents and purposes acted in accordance with the law that existed at the time the decision was made. Yet many face complaints based on Alan Ritchey, Inc., which is no longer valid. What ultimately will happen in cases like that remain to be seen.
Also, a number of Regional Directors were appointed during the period the Board lacked a quorum. It is likely many of their decisions made during this period will be challenged as well.
Chairman Pearce issued a terse press release about the Supreme Court’s decision, which does nothing to describe what will happen next. Stay tuned, more on this issue will come in the next several weeks.
It is perhaps ironic that a Supreme Court decision which clarifies so much on the presidential recess appointment power also raises so many questions going forward. As we navigate this period, we will cover the developments here.