Supremes Benchslap President

By John Alan Doran

This morning the U.S. Supreme Court handed down a decision that has widespread impact on the Obama Administration’s labor agenda, as well as the NLRB’s recent attempts to grossly expand its authority.  NLRB v. Noel Canning, No. 12-1281 (U.S. June 26, 2014).  The Court held that the President’s “recess appointments” to the NLRB in January 2012 were not recess appointments at all, and therefore exceeded the scope of Presidential power.  The Court, in short, held that a recess of a mere three days, while the Senate was actually still in session, did not entitle the President to unilaterally appoint new members to the NLRB.  Because the appointments were unconstitutional, the NLRB lacked a necessary quorum to render decisions, and therefore their decisions were void.  The result is to invalidate hundreds of NLRB decisions, many of which are among the most controversial in Board history.  The NLRB will now have to go back to the drawing board and reconsider these cases, hopefully with a more balanced and employer-friendly view in light of the recent business-side appointments to the Board.  We will issue a far more detailed analysis of the decision in the form of a Client Alert within the next day.