Today, a unanimous Supreme Court held that President Obama's January 2012 appointments of three members to the National Labor Relations Board (NLRB) violated the Recess Appointments Clause of the Constitution. The Recess Appointments Clause allows the President to appoint individuals to vacant positions that would otherwise require confirmation by the Senate, but only during times when the Senate is in Recess.

In the Noel Canning case, the issue was whether the President had authority to appoint three members to the NLRB in January 2012. The appointments occurred during a three-day Senate interruption of its annual session (intra-session recess), as opposed to during the interval between the Senate's annual sessions (inter-session recess). Interpreting the centuries old clause for the first time, the Court unanimously agreed that in this case the appointments were unconstitutional. However, the Court split over whether any intra-session recess appointments would be Constitutional, with the majority holding that the Recess Appointments Clause generally does permit the President to make intra-session recess appointments to fill government vacancies, provided that the Senate's intra-session recess lasts at least 10 days. As the Senate recess in January 2012 was only three days in length, the President's NLRB appointments are invalid.

For employers, the critical question is what today's decision does to the hundreds of decisions and orders issued by the NLRB during the time the invalid appointees were sitting on the Board. Those decisions?which reflect a very activist approach to the Board's mandate and the rights of employees "to engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection"?are now null and void. Nonetheless, the Board is back up to full membership with five Senate-confirmed members and it is anticipated that the current Board will likely reaffirm many, if not all, of the nullified decisions.