The U.S. Supreme Court unanimously ruled June 26 in NLRB v. Noel Canning that three appointments to the National Labor Relations Board (“NLRB”) were unconstitutional.  The appointments were made during the 2011 winter holiday, during which the Senate was in pro forma session, not recess.  According to the U.S. Supreme Court, the Recess Appointments Clause of the Constitution was not meant “to overcome serious institutional friction” and its use here to appointment members was improper. 

As a result of the ruling, the NLRB did not have a quorum in 2012, during which the NLRB issued hundreds of decisions on topics ranging from social media to arbitration policies.  “There is certainly a question mark now about the validity of the decisions issued by the NLRB during this period,” says Daniel Shea, a partner at Nelson Mullins Riley & Scarborough’s Atlanta office, who also noted that affected cases can now be challenged on that basis. 

However, Mr. Shea, who has more than 40 years’ labor experience, also observed that the three appointments have been properly filled now, and that the total make-up of the NLRB contains a strong Democrat-appointed majority.  “The last few years have unfortunately seen a trend of unfavorable decisions to employers.  The impact of this decision on the Board will be to temporarily slow down its pro-union/employee agenda while it reconsiders all affected decisions, but it will not likely change it.”