Supreme Court Strikes Down NLRB Recess Appointments … This Time

Labor & Employment @lert

Date: June 27, 2014

The U.S. Supreme Court on June 26, 2014 ruled unanimously that President Obama acted outside his constitutional authority when he appointed three members (Sharon Block, Richard Griffin and Terence Flynn) to the five-member panel of the National Labor Relations Board (NLRB or the Board) in January 2012. This decision will force the NLRB to revisit over 100 decisions issued from January 2012 through July 2013.

Four years ago, in its decision in New Process Steel v L.P. v. NLRB, 560 US 674 (2010), the Court decided that the NLRB must have a quorum of at least three of its five members to issue valid decisions. Together, the holdings in Noel Canning and New Process Steel mean that every decision made by the Board from January 2012 until July 2013 was invalid because the improperly appointed members do not count towards the quorum.

Notably, the Court did not go as far as the D.C. Circuit in striking down the recess appointments. In Noel Canning v. NLRB, 705 F. 3d 490 (D.C. Cir. 2013), the Court of Appeals held that all recess appointments were invalid unless made during the recess between Senate sessions. The Supreme Court held that the specific recess appointments in this case were invalid because the Senate was holding pro forma sessions, but also stated that other recess appointments made during longer recesses were valid even if they were not during the recess between Senate sessions. While it is not clear exactly how long a recess must be to be considered a valid recess, the Court held that 10 days is too short to trigger the Recess Appointment Power.

While this decision marks a victory for employers, it is important to remember that decisions issued from August 2013 to the present are valid law. Moreover, the current NLRB is likely to adopt the same rationale and policies as those made by the invalid appointees.

FOR MORE INFORMATION

For more information, please contact:

Eric S. Clark
513.352.6555
Eric.Clark@ThompsonHine.com

Allison M. Kendall
513.352.6507
Allison.Kendall@ThompsonHine.com

or any member of our Labor & Employment group.

***

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgement of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

© 2014 THOMPSON HINE LLP. ALL RIGHTS RESERVED.