NLRB Announces Ratification of Board “Recess Appointment” Decisions
by David G. Ritchie on October 21, 2014
posted in Legislative Updates,
Earlier this year, the U.S. Supreme Court, in National Labor Relations Board v. Noel Canning et. al., ruled that the appointment of three members of the National Labor Relations Board were not valid. The appointments had taken place following the President invoking the “Recess Appointments Clause,” permitting the President to make appointments when the Senate is in recess, when the Senate was in a three-day adjournment between January 3 and January 6, 2012. The Supreme Court held that recesses of more than three days but less than ten days are presumptively too short to trigger the recess appointments clause.
The effect of the decision in Noel Canning is that the NLRB lacked a quorum to make decisions from January 4, 2012 through August 5, 2013 due to the invalid appointments. The issue of the NLRB quorum was resolved going forward, on that day, when the Senate confirmed the earlier appointments. The validity of the entirety of the Board’s decisions prior to August 5, 2013, however, appeared to remain invalid based on the Noel Canning decision. These Board decisions included the appointment of staff and administrative law judges, a restructuring of the NLRB offices, amendments to the authority of general counsel to the Board and all decisions on disputes in personnel matters made by the Board or its delegates.
On July 18, 2014, the Board moved to resolve the issue of the validity of their decisions prior to confirmation of the Recess Appointment members. The Board stated: “…in an abundance of caution, with a full complement of five Board Members we now confirm adopt and ratify nunc pro tunc all administrative, personnel and procurement matters approved by the Board or taken by or on behalf of the Board from January 4, 2012 to August 5, 2013, inclusive.”
Despite the intent of the Board action “to remove any question that may arise concerning the validity” of the decisions during the period the Board lacked a quorum, existing cases over those decisions remain uncertain. The Board’s media release on the ratification can be viewed here: https://www.nlrb.gov/news-outreach/news-story/nlrb-officials-ratify-agency-actions-taken-during-period-when-supreme-court
← Back to Posts