In late June, the Supreme Court affirmed the D.C. Circuit’s holding in NLRB v. Noel Canning, finding President Obama’s controversial recess appointments to the National Labor Relations Board in January 2012 were invalid, casting doubt on hundreds of Board decisions.
The Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as it retains the capacity to transact Senate business. The President had made three recess appointments to the five seat Board while the Senate was out of town, except for intermittent, routine sittings, between the two sessions.
The National Labor Relations Board (NLRB) will now have to revisit hundreds of decisions involving the three disqualified appointees, and potentially issue new decisions. Among others, the NLRB has asked the Fourth Circuit to review its ruling that Nestle Dreyer’s Ice Cream Co. violated federal labor law in refusing to bargain with the maintenance workers’ union after the NLRB directed their union election in November 2011.
The ruling also casts doubt on the validity of regional directors appointed by the Board, opening the door for employers to challenge adverse decisions by making the argument that a regional director lacked authority.
Employers should stay tuned as the impacts of this ruling take effect – NLRB precedent harmful to business interests may be overturned, and specific findings of the NLRB against employers may be overturned pending review by a valid panel.