NLRB Recess Appointments Held Unconstitutional- NLRB EFFECTIVELY SHUT DOWN

Julie Proscia
January 25, 2013 — 1,178 views  

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit ruled today that President Obama did not have the constitutional authority to make three recess appointments to the National Labor Relations Board (NLRB) last January. Specifically, the court held that President Obama did not have the power to bypass the Senate and make the recess appointments since the Senate was not technically in recess.

On January 4, 2012, President Obama appointed three members to the five-member Board while the Senate was away during a 20-day holiday recess. Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin, and NLRB counsel Terence Flynn were appointed to fill vacancies on the NLRB during the recess.

The Obama administration has repeatedly asserted that the appointments to the NLRB were proper because of the vacation recess; however, the appeals court disagreed with this characterization, and ruled that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.

If this decision is upheld, the Board would be left with just one validly appointed member, Chairman Mark Gaston Pearce — who was confirmed by the Senate. Under a 2010 Supreme Court decision, the NLRB, which has five seats, is authorized to issue decisions only when it has three or more sitting members.  If this appellate court decision stands, it could invalidate hundreds of Board decisions and would effectively shut down the NLRB.

The Obama Administration is certain to appeal the court’s decision to the United States Supreme Court and this determination will impact hundreds of cases. In the meantime, every matter that the NLRB rules on is in question and the only thing that is certain is that labor took a big hit today and the NLRB just got a little less scary…


Julie Proscia

SmithAmundsen LLC

Julie Proscia and Jeff Risch are partners in the Labor and Employment Group of the St. Charles office and represent management in labor issues. Julie can be contacted at [email protected] or at 630.587.7911 and Jeff can be contacted at [email protected] or at 630.587.7922.