In a major decision yesterday, the U.S. Supreme Court held that the recess appointments President Obama made to the NLRB in January 2012 were unconstitutional. The case related to the appointments of three members of the NLRB on January 4, 2012, during a period of time in which the U.S. Senate was in an intra-session recess, punctuated by "pro-forma" sessions every three days. One such session had been held on January 3 and another was scheduled for January 6.
The Supreme Court unanimously concluded that the appointments were invalid, although the reasoning for that conclusion split the Court into two camps. The majority view would permit some intra-session appointments, but held that in this case the three day break was not long enough to trigger the President's recess appointment power. The concurring view was that there could be no recess appointments during an intra-session recess, and that only positions that became vacant during that recess could be filled by the recess appointment power.
While the constitutional scholar will spend many hours parsing the decision (and there is plenty of decision to parse, with the opinions in the case running over 100 pages), the implications for labor professionals are more practical. These include:
- All opinions decided by the NLRB during the period from January 2012 to August 2013 are suspect. Given the invalidity of the recess appointments, there were not enough properly appointed and confirmed NLRB members to lawfully issue decisions.
- The last time a group of NLRB decisions were invalidated by a Supreme Court ruling, involving whether two members the NLRB could properly conduct its business, the NLRB set up a process for reviewing these decisions and ultimately affirmed the outcome of those decision in the vast majority of cases.
- Some very significant decisions are potentially in question. These include, among others, the NLRB's first Facebook termination case, a case addressing whether the employer has the right to suspend dues check off when a union contract expires, and the decision limiting an employer's confidentiality instruction to employees during a workplace investigation.
- With the need to reassess these and many other cases, the NLRB's agenda on other items may be slowed. For example, the resources necessary to reexamine the numerous decisions invalidated by yesterday's ruling may cause the NLRB's "ambush" election rule to be delayed.
While the NLRB's Chairman made a brief statement yesterday, the NLRB has not yet announced how it will address the Court's ruling.