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Supreme Court's Recess Appointment Decision Could Affect Important NLRB Precedents

    Client Alerts
  • July 04, 2014
Last week, the U.S. Supreme Court unanimously found President Obama’s recess appointments to the National Labor Board to have been an unconstitutional exercise of executive authority. In NLRB v. Noel Canning, the Court concluded that the Senate remained in pro forma sessions at the time of the appointments, negating recess appointment authority. A divided Supreme Court refused to apply a very narrow definition of the President’s recess appointment powers, opting instead for rules that allow intrasession appointments during recesses of adequate duration.
For employers, the direct result of this decision is the presumptive invalidation of up to 800 NLRB decisions from 2012-2013, including approximately 100 decisions that are currently under federal court appeal. These decisions include a number of important employee and union-friendly NLRB precedents, such as cases involving social media policies, mandatory arbitration agreements and union election procedures. Other NLRB precedents may be challenged on the basis of decisions made by Regional Directors appointed by the Board without an adequate quorum.
The Supreme Court’s decision will likely result in remand of many of these cases to the NLRB for new consideration. The Board’s current 3-2 Democratic appointee majority may result in the same outcome in many of these contested cases. However, many parties who received adverse rulings in 2012 and 2013 may decide to try their luck again. For new cases, these prior decisions have questionable precedential value for the NLRB and for federal Administrative Law Judges called upon to decide similar legal issues.
Given the sheer number of NLRB decisions called into question by this decision, the Board may need considerable time to wade through the older cases and to make decisions with regard to previously settled legal issues.