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.
