If you have attended any of our recent seminars (and if not, why not?) or read a fair portion of our articles and blog postings, then you know that the National Labor Relations Board (NLRB) has been on the warpath lately. And not just against unionized employers, but against non-unionized employers as well. Indeed, the NLRB has primarily targeted non-unionized employers in issuing memorandums and decisions on social media policies and practices (including terminations related to violations of employer social media rules), at-will employment policies, and arbitration policies. Some of these decisions were made by an NLRB which included members appointed by President Obama as “recess appointments” in January 2012.
The Obama Administration would argue that the recess appointments were made necessary because Senate Republicans unreasonably refused to confirm President Obama’s NLRB appointments at the time. As a result, President Obama was forced to exercise his right to fill vacancies in government agencies during a time the Senate was not in session on January 4, 2012 (the Senate was, in fact, on a 20 day holiday break at the time). These appointments were subsequently challenged as unconstitutional on the theory that the Senate was not really in recess at the time the appointments were made.
On January 25, 2013, in Noel Canning v. NLRB, the D.C. Circuit Court of Appeals agreed, holding that “recess” means the period of time during which the Senate is formally adjourned following a two-year session. It does not mean any period of time when the Senate is not in session for one or more days, as occurred last January when the President made the “recess” appointments. The NLRB recess appointments were therefore unconstitutional.
This is a significant setback for President Obama. The decision effectively shuts the NLRB down as the five member board requires at least three members to provide a quorum to act. With the recent departure of a member and two recess appointees now facing Senate confirmation or stepping down, the NLRB now lacks sufficient members. The decision further puts recent NLRB actions in legal jeopardy, as opponents will argue that the board lacked a quorum at the time the decisions were made. The ruling also casts doubt on other Obama recess appointments, including the appointment of a new head of the Consumer Financial Protection Bureau.
The White House and the NLRB have already expressed their criticism of the decision (Presidents do not actually utter the words “my bad”) and the NLRB has vowed to carry on business “as usual” (whatever that means), so it seems likely that the D.C. Circuit decision will be appealed to the United States Supreme Court. In the meantime, however, the decision in Noel Canning v. NLRB amounts to good news for employers who already have enough to worry about without a hyperactive NLRB on the horizon.
This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2013. All rights reserved; yep, all of them.
If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq. (who else would you contact?), commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department, at (310) 281-6348 or email@example.com.