Yesterday, the Supreme Court took a major step toward resolving one of the hottest issues in labor law today—the legality of the NLRB’s actions and decisions in light of certain questionable appointments to the NLRB by the Obama Administration in 2012. The Supreme Court agreed to hear the Obama Administration’s appeal of the Noel Canning decision out of the D.C. Circuit Court of Appeals. The Noel Canning decision called into question the legality of literally hundreds of NLRB decisions by holding that the President’s “recess appointments” to the NLRB did not occur during a genuine recess, and were therefore invalid. If these recess appointments were unlawful (because they did not receive the advice and consent of the Senate), then the Board’s decisions are unlawful because it was operating without an actual quorum, and the Supreme Court previously ruled in the New Process Steel case in 2011 that the Board lacks legal authority to issue rulings and make rules when it lacks a quorum. The Supreme Court will hear the Noel Canning case next term. Until then, all of the Board’s recent decisions are up in the air.
The Court of Appeals for Washington D.C. ruled today that the President’s “recess” appointment of three members of the National Labor Relations Board was unconstitutional. Although the Senate was not holding sessions, it was not in “The Recess” either and therefore the President could not make a “recess” appointment. What happens now to all the NLRB rulings since last January?