The U.S. Court of Appeals for the Fourth Circuit agreed with two other courts July 17 by ruling the president violated the Constitution when he bypassed the U.S. Senate to make recess appointments to the National Labor Relations Board (NLRB). 

In the original case, the U.S. Court of Appeals for the D.C. Circuit ruled Jan. 25 that the president’s January 2012 recess appointments of three members to the NLRB were invalid, supporting the argument made by the ABC-led Coalition for a Democratic Workplace. On May 16, the U.S. Court of Appeals for the Third Circuit issued another ruling that agreed with the January decision and also declared the March 2010 recess appointment of Craig Becker unconstitutional. 

Despite the initial court ruling, President Obama re-nominated two out of the three unconstitutional recess appointees in February. The nominations were withdrawn July 16 and new members were nominated as part of a deal to avert a plan to radically change long-standing rules of the Senate by lowering the number of votes needed to move forward on most legislation or nominations. The rule change would have allowed Senate Majority Leader Harry Reid (D-Nev.) to place these appointees on the board.

The Senate now is expected to vote on the confirmation the two new nominees—AFL-CIO Associate General Counsel Nancy Schiffer and Kent Hirozawa, chief counsel to the NLRB chairman—before its August recess. Once those members are confirmed, the NLRB will be fully staffed and likely will pursue issues that the board had not been able to complete in the past few years – many of which are designed to facilitate or expedite the union organization process, such as the “ambush” elections rule. 

In addition, the NLRB has appealed the January 2013 decision to the U.S. Supreme Court, which is expected to rule on the constitutionality of the recess appointments within the next year. The decision could potentially invalidate all decisions made by the NLRB that required a quorum during the terms of the recess appointees.