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The Supreme Court Invalidates President Obama’s NLRB Recess Appointments

Labor & Employment Law Alert David B. Kern, Judith Williams-Killackey

On June 26, 2014, the Supreme Court issued its much awaited decision in National Labor Relations Board v. Noel Canning. Last January, the D.C. Circuit held that President Obama overstepped his bounds when he appointed Terence Flynn, Richard Griffin, and Sharon Block on January 4, 2012, to the National Labor Relations Board (“NLRB”). 

The NLRB appealed the Noel Canning decision to the Supreme Court. In its June 26 opinion, the Supreme Court held the appointments were invalid because: (1) the Senate was in session during its pro forma sessions; and (2) the three-day “recess” period between these sessions was too short to allow the president to exercise his unilateral appointment power.

So what are the consequences of this decision with regard to the NLRB? Because the appointments were invalid, the NLRB lacked the required number of members necessary to issue decisions during those recess appointments. As a result, the Supreme Court’s opinion may invalidate the decisions issued by the NLRB during the tenure of the appointments.

Many of these decisions will not necessarily have to be revisited, as the parties will have already complied with the remedies required by the particular decision that was issued. However, hundreds of decisions issued by the NLRB during this time period were appealed and are still pending in the court system. These decisions will need to be addressed again by the NLRB. In the past when the Supreme Court has invalidated an action by the NLRB, the NLRB has generally revisited the decisions at issue and simply reaffirmed them. The NLRB, however, may take a different approach and more thoughtfully review the decisions at issue. Nevertheless, the NLRB has already faced criticism regarding its backlog, and the necessity of dealing with the decisions invalidated by the Supreme Court’s ruling will add hundreds of cases to those pending before the NLRB. If the NLRB does review each decision at issue anew, it is possible that the NLRB may delay action in other areas which have been the subject of its recent focus, including the quickie election rule and the use of an employer’s electronic communications systemsfor organizing or other protected activities under the NLRA.

Aside from the invalid decisions rendered by the NLRB, it is also possible that actions taken regarding the appointment of individuals (such as regional directors) during the time the NLRB lacked a valid quorum would also be considered invalid. It is more likely that the NLRB would wholesale reaffirm these appointments.

It remains to be seen how the NLRB will respond to the Noel Canning decision. In the meantime, if you have questions regarding this decision, please contact Dave Kern at (414) 277-5653 / david.kern@quarles.com, Judith Williams-Killackey at (414) 277-5439 / judi.williams@quarles.com, Jon Pettibone at (602) 230-5572 / jon.pettibone@quarles.com, Fred Gants at (608) 283-2618 / fred.gants@quarles.com, John Klages at (312) 715-5060 / john.klages@quarles.com, or your Quarles & Brady LLP attorney.