In a decision that could have major repercussions for recent National Labor Relations Board decisions, the U.S. Supreme Court has ruled that President Barack Obama’s appointment of three NLRB members in January of 2012 was improper. In NLRB v. Noel Canning, 2014 BL 177533, U.S. No. 12-1281, 6/26/14, the Court considered whether the President had the constitutional authority to appoint Sharon Block, Richard Griffin, and Terence Flynn to the Board while the Senate was holding pro forma sessions every three days. The Constitution’s Recess Appointments Clause permits the President to “fill any vacancy during any recess … of sufficient length.” The Court’s decision states that, although the Senate was not conducting official business, the “Senate is in session when it says it is,” and that a recess must at least be 10 days long for the President to make recess appointments. As such, the appointments of Block, Griffin, and Flynn were improper.
Given this ruling, hundreds of decisions made by the NLRB in 2012 and 2013 could be overturned. The NLRB now has a full contingent of Senate confirmed members, so recent NLRB rulings are not impacted by the Court’s decision. However, during the relevant time frame, the NLRB issued approximately 300 published and 500 unpublished decisions. These included substantial changes from established precedent, including Banner Health System, which required specific business justification for an employer to require confidentiality regarding internal investigations, and Piedmont Gardens, which required witness statements included in employer investigations to be disclosed to unions. For its part, the NLRB released a statement saying that it is “analyzing the impact of the Court’s decision” on its 2012 and 2013 decisions. MSEC will update members on the repercussions of this case as they develop.