NLRB Recess Appointment Litigation Update

September 11, 2013

pic-supreme-courtThe National Labor Relations Board (NLRB) is composed of five members and must have at least a quorum of three to make decisions or take action.  In a 2010 decision, New Process Steel v. NLRB, the Supreme Court held that the National Labor Relations Act requires the NLRB to have three members to act and cannot delegate its authority to a smaller committee.  On Jan. 25, 2013, the U.S Court of Appeals for the District of Columbia Circuit ruled that the NLRB lacks authority to act because it has only one lawful member.

On Jan. 4, 2012, the President made recess appointments of Sharon Block, Terence F. Flynn and Richard Griffin to the NLRB. Flynn has since resigned and both Block and Griffin have withdrawn their nominations (see below). At the time of the President’s recess appointments of the three Board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from Dec. 20, 2011, through Jan. 23, 2012. The agreement stated that no business would be conducted during those sessions. During the Dec. 23 pro forma session, the Senate overrode its prior agreement by unanimous consent and passed a temporary extension to the payroll tax reduction.  During the Jan. 3 pro forma session, the Senate acted to convene the second session of the 112th Congress.

The D.C. Appeals Court held that the President’s recess appointments to the NLRB made Jan. 4, 2012, were not constitutionally valid since the Senate was not in recess.  Since Block and Griffin were not valid members, that left only one validly appointed member (Chairman Pearce).  The decision puts in doubt every decision made by the NLRB since January 2012 –an estimated 300 decisions — because the NLRB did not have the legal authority to act. Moreover, the NLRB says that over 100 decisions are currently pending.

On April 25, 2013, the NLRB filed its petition for a writ of certiorari from the Supreme Court.  On June 24 2013, the petition was granted by the Supreme Court.  In addition to the questions presented by the petition, the parties were directed by the court to brief and argue whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.  The time for the government to file its brief on the merits has been extended to Sept. 13, 2013.  The time to file the respondents’ brief on the merits has been extended to Nov. 18, 2013.  Oral arguments will follow and a decision can be expected in May or June of 2014.