Good news for employers: The Supreme Court today affirmed a lower court ruling that said President Obama overstepped his executive powers when he used “recess appointments” to name three members to the National Labor Relations Board (NLRB) during a break in U.S. Senate proceedings.
The June 26 Supreme Court ruling (NLRB v. Noel Canning) said the Senate was technically not in recess when Obama named the three NLRB board members in January 2012. Thus, because those appointments were invalid, so were more than 100 rulings made by the NLRB in 2012, most of which were pro-employee decisions.
Although the Supreme Court didn’t explicitly say so, this likely means the NLRB will have to rehear and redecide all of those cases from 2012. Given the current composition of the NLRB, most of those cases will probably be resolved just as they were two years ago. The present NLRB is ideologically similar to the 2012 board.
The practical impact: All that rehearing of cases will likely create a procedural logjam at the NLRB, which could take months to clear.
The NLRB has been pushing an aggressive pro-employee agenda, including rulemaking to approve “quickie” union elections and letting employees use company email to organize a union. The business community will look favorably on any way those NLRB actions can be delayed or stopped.
If the board has to reevaluate all those improperly decided cases, “it could get bogged down in exercises of retrospection that may forestall the (NLRB) agenda for quite some time,” said a Fisher & Philips law firm report.
The case hinged on this Constitutional issue: Who determines when the Senate is in session and how far the White House can push its executive authority.
Justice Stephen Breyer, writing for the court, said, “For purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here.”
Senate Republicans had blocked confirmation of Obama's NLRB appointments in late 2011, leaving the board with just two members, too few to take any official action. But in January 2012, the Senate stopped legislating during a 20-day "holiday," although it did not formally adjourn. Instead, Republicans held five-minute pro forma sessions every three days. That's when President Obama issued the three controversial appoints.
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