U.S. Supreme Court Invalidates President Barack Obama’s Recess Appointments to NLRB

On June 26, 2014, the U.S. Supreme Court  by a 9-0 ruling, held that three of President Barack Obama’s 2012 appointments to the National Labor Relations Board (“NLRB”) made during a three-day recess within a formal session of Congress were unconstitutional. This unanimous decision, NLRB v. Noel Canning, found that the Recess Appointments clause in Article Two of the U.S. Constitution applies to all inter-session recesses (i.e., recesses between sessions of Congress). However, the Supreme Court found that the Recess Appointments clause generally does not apply to recesses that occur during a session of Congress unless those recesses are longer than 10 days. The Supreme Court made an exception for emergency situations in which Congress is in recess for longer than three days, but less than 10 days, although the Court acknowledged that this would likely be on a case by case basis.

The Supreme Court’s NLRB v. Noel Canning decision means that all decisions and actions taken by the NLRB between January 4, 2012 and August 2, 2013 – the period when President Obama’s recess appointments were effective – including over 700 decisions and several Regional Director appointments are likely invalid. The NLRB must now revisit and reconsider all of these potentially invalid decisions.

The last time the NLRB was faced with this issue, the NLRB simply rubber stamped all of the prior invalidated decisions once its members were all properly appointed. Therefore, it is likely that the NLRB will reconsider and reaffirm its decisions in most, if not all, of those cases made questionable by the Supreme Court’s holding in NLRB v. Noel Canning. However, this may take substantial time, given the high profile of the cases, the manner in which the decisions departed from NLRB precedent, and the significant implications these decisions had for employers. While it is unclear what exactly will happen in the decisions invalidated by Noel Canning, employers should continue to use those decisions as guidance. Moreover, given the time it will take for the NLRB to revisit all of the potentially invalidated decisions, its actions in other matters are likely to be delayed and its ability to proceed on pending matters inhibited.

In addition, on July 11, 2014, less than three weeks after the Supreme Court’s NLRB v. Noel Canning decision, the White House announced that it will re-nominate former Member Sharon Block, one of the recess appointees that the Supreme Court held to be unconstitutional, to the NLRB. Block will likely replace current Member Nancy Schiffer, whose appointment expires later this year

Leech Tishman’s Employment Practice Group will keep employers apprised of any developments as to the NLRB’s and President Obama’s actions regarding the Supreme Court’s NLRB v. Noel Canning decision. We are also available to assist employers in navigating the Supreme Court’s decision and the NLRB’s actions post Noel Canning.

Please feel free to contact the Employment Group with any questions regarding NLRB developments, or any other employment matter.

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