NLRB Recess Appointments Held to be Unconstitutional


The U.S. Supreme Court has just ruled that President Obama's recess appointments to the National Labor Relations Board(NLRB) were unconstitutional. In NLRB v. Noel Canning, the Court was asked to decide if President Obama exceeded his authority to make recess appointments to the NLRB while Congress was in pro forma session during which a three-day recess occurred. He made the recess appointments on January 4, 2012 to allow the Board to continue to have a quorum.

The decision recounts the long history of Presidential recess appointments and concludes that a recess of between three to ten days is presumptively too short to trigger the President's recess appointment powers.

Procedurally, this means that the decisions issued by the NLRB from January 4, 2012 until July 30, 2013, when the Senate confirmed three members bringing the Board to its full five-member standing, are invalid.

What does all this mean in the real world?

It will probably have very little practical impact for employers who had cases decided by the improperly constituted NLRB. In 2010, the Supreme Court ruled in New Process Steel, L.P. v. NLRB that the NLRB improperly decided cases without a quorum. That holding invalidated approximately 600 decisions that were issued during the time when the Board had only two members. By the time the New Process Steel ruling came out, however, there was a proper quorum, and the 600 cases went back to the Board and were, almost without exception, summarily affirmed.

As of last July, a full, five-member Board has been confirmed by the Senate. It is heavily weighted in favor of unions and employees. Most experts expect the current Board to simply rubber stamp the decisions that were issued during the recess appointment period. The Court's decision today is anticipated to have more importance as a Constitutional separation of powers case than impact on labor law.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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