Unanimous Supreme Court Strikes Down Obama's NLRB Appointments


Employment, Benefits & Labor

The United States Supreme Court recently issued a much anticipated decision in NLRB v. Noel Canning, holding that President Obama’s three appointments to the National Labor Relations Board (“NLRB”) during the Senate’s pro forma sessions in January 2012 were unconstitutional.  In interpreting the Recess Appointments Clause of the Constitution, the Court confirmed that the Clause permits the President to fill existing vacancies during intra-session or intercession recesses of sufficient length. However, the unanimous opinion clarified that, while the Clause does not specify how long a recess must be, a three-day recess is an insufficient interruption of legislative business to trigger the President’s recess appointments power.

The degree to which this holding will impact NLRB decisions issued after January 2012 is not yet clear. The NLRB has handed down a number of decisions of particular concern to employers since that time, including decisions touching on issues such as limitations on employers’ social media policies and arbitration agreements. It is possible that the NLRB will decide to revisit and reissue some or all of the affected decisions. Whether and to what degree the Noel Canning decision bears on such decisions will be of continued interest to employers.


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