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Judy Greenwald

Supreme Court rules Obama's 2012 NLRB recess appointments invalid

June 26, 2014 - 3:04pm


The U.S. Supreme Court on Thursday held that three appointments to the National Labor Relations Board made by President Barack Obama in January 2012 while Congress was between pro forma sessions are invalid, rendering moot about 600 rulings subsequently issued by the board since then.

However, the unanimous high court ruling in National Labor Relations Board v. Noel Canning et al. is not expected to affect the agency's aggressive posture with regard to social media, one expert said.

The ruling upholds a January 2013 ruling by the U.S. Court of Appeals for the District of Columbia Circuit that also invalidated the three appointments, though on different grounds.

A focus of the high court ruling was the U.S. Constitution's Recess Appointments Clause, which gives the president the power to fill “all vacancies that may happen during the recess of the Senate.”

It notes that President Obama made the three appointments on Jan. 4, 2012, while Congress was between pro forma sessions from Jan. 3-6.

“When the appointments took place, the Senate was in the midst of a three-day recess,” said the opinion by Justice Stephen Breyer.

“Three days is too short a time to bring recess within the scope of the Clause. Thus, we conclude that the President lacked the power to make the recess appointments here at issue,” said the ruling.

“We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here,” said the ruling.

The ruling did hold, however, that the clause applies to both inter-session recesses, which occur between formal sessions of Congress, as well as intra-session recesses, such as the summer recess in the midst of session. In its ruling the District of Columbia appeals court had rejected the appointments on the basis that the clause did not apply to intra-session recesses.

The Supreme Court ruling also held that the term vacancies in the clause apply to vacancies that first come into existence during a recess, as well as vacancies that arise prior to a recess.

NLRB response

NLRB chairman Mark Gaston Pearce issued a statement in which he said the agency is analyzing the impact the court's decision will have on cases in which the January 2012 recess appointees participated.

He said the board today “has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The agency is committed to resolving any case affected by today's decision as expeditiously as possible,” said Mr. Pearce in the statement.

600 companies affected

Commenting on the ruling, Steven Bernstein, a partner with law firm Fisher & Phillips L.L.P. in Tampa, Florida, said 600 companies are affected by the ruling. Many of those companies preserved their right to appeal on the issue of the validity of the appointments, he added.

“As of today, those decisions are invalid from the beginning, as if they never happened, so those employers will see their decisions re-evaluated by panels of three board members, and that all of that will take place over the next several weeks and perhaps months,” he said.

Depending on the constitution of those panels — whether they have two Republicans or two Democrats — different rulings may be issued, said Mr. Bernstein.

But it is unlikely the NLRB will change its policy with respect to issues involving social media and employee handbooks, said Mr. Bernstein. Many employers have found those rulings in this area to be overly broad and aggressive.

The NLRB's policy was crafted over the past couple years after the agency reached a quorum, and some of the rulings were made by its general counsel, who has retained his authority, he said.

“I don't think this is a development that will stop the board in its tracks when it comes to social media, let alone cause it to reverse its position,” he said.

 



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