The US Supreme Court ruled that President Obama's recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. The Court found that the Senate recess during which the appointments were made was too short to allow recess appointments under the Constitution. As a result, the NLRB lacked a valid quorum and power to issue over 700 decisions during the time the invalid appointees served. Many of these decisions favored unions and employees over employers. The NLRB will have to reconsider many past decisions but is likely to uphold earlier pro-labor rulings due to its current majority.

1.
U.S. Supreme Court invalidates President's
appointments to Labor Board
Publication Date: 3 July 2014 | Author(s): Rick Warren Member Firm(s): FordHarrison Country:
United States
In a long-awaited decision, the U.S. Supreme Court has held that President Obama’s
appointments of members Block, Griffin, and Flynn to the National Labor Relations Board (NLRB)
on January 4, 2012, were unconstitutional. Although the Court broadly interpreted the President’s
power to appoint federal officials during a Senate recess, under the Recess Appointments Clause
of the Constitution, it held that the recess during which the appointments were made was too short
to fall within the Clause. Accordingly, the Court found that the President lacked the authority to
make these appointments, and therefore the Board lacked a valid quorum during the time these
members served. The NLRB consequently lacked the power to act.
Although the positions held by these members have since been filled by validly appointed
members, the Court’s decision has potentially far-reaching repercussions as it calls into question
hundreds of decisions issued and other actions taken by the Board during the time these invalidly
appointed members served. According to a 2010 Supreme Court decision, the NLRB cannot act
without a validly appointed quorum.
The Court’s decision today means the Board lacked a valid quorum when it issued over 700
decisions, a number of which will have to be reconsidered. Many of the Board’s decisions in 2012
were decided against employers, and some were very high profile. Among these decisions were
Costco Wholesale Corp., where the Board struck down an employer’s social media policy, and
Banner Health System, where the Board adopted a new approach, holding that an employer
commits an unfair labor practice if it asks an employee, who is the subject of an internal
investigation, to refrain from discussing the matter during the investigation.
This process will likely delay the Board’s momentum in issuing other decisions unfavorable to
employers. With a pro-labor majority, however, the Board likely will uphold its earlier decisions that
it must reconsider under Noel Canning.
For more information see NLRB v. Noel Canning (June 26, 2014).
Taken from the Ius Laboris Knowledge Base: www.globalhrlaw.com

2.
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