Supreme Court Rejects NLRB Appointments

Yesterday the U.S. Supreme Court ruled that President Obama did not have the authority to make recess appointments—appointments that bypass the normal Senate-approval process—of three members of the National Labor Relations Board in January 2012. The lengthy majority and concurring opinions are here. They include long constitutional debates about the presidential recess appointment power that will no doubt be discussed in law school classes for years to come. But what is the practical effect? A large number of NLRB decisions—ranging from January 2012 until August 2013 when new members were appointed to the NLRB—are invalid. That includes some of the many controversial decisions we have written about on this blog. The current Board will have to reconsider those decisions. That is not necessarily going to turn out well for employers. We have written many times about the heightened efforts by the Board to regulate and limit routine employer practices, policies, and agreements. The Board members who recently have pushed those efforts are the same ones who will be reconsidering the previous, now invalid decisions. So, although for now numerous decisions are invalid, there’s a good chance that many if not most of those decisions will be reinstated eventually.—Bryan Neal, Thompson & Knight