On June 26, 2014, the United States Supreme Court issued a 9-0 decision in NLRB v. Noel Canning, invalidating recess NLRB appointments that President Obama made on January 4, 2012 and potentially invalidating all NLRB decisions from January 2012 through July 2013.
On June 26, 2014, the United States Supreme Court issued a 9-0 decision in NLRB v. Noel Canning, invalidating recess NLRB appointments that President Obama made on January 4, 2012 and potentially invalidating all NLRB decisions from January 2012 through July 2013.
In January 2012, the Senate was holding “pro forma” sessions every three days and, during that time, President Obama believed the Senate was “in recess.” Therefore, under the Constitution’s Recess Appointment Clause, President Obama exercised his authority to appoint members to the NLRB. Those members went on to make decisions with sweeping changes to the NLRB case law.
In its June 26 opinion, the U.S. Supreme Court concluded that the Senate was not in recess in January 2012 and, thus, the President lacked the power to make the NLRB recess appointments. In so holding, the Court found that the NLRB was not operating with the requisite three-member quorum when making decisions from 2012 through 2013. The Court, therefore, invalidated all of the NLRB’s decisions from January 2012 through July 2013, when it established a proper membership.
The decision affects employers as it raises uncertainty concerning the validity of NLRB decisions, rulings, and administrative actions issued during this time period, although the NLRB has already started to revisit these decisions on a case-by-case basis. Connell Foley’s labor and employment law attorneys will track the NLRB’s response and will be available to assist employers in understanding how to respond to these new decisions.