The Supreme Court has ruled that President Obama’s 2012 recess appointments to the National Labor Relations Board were illegal.
The decision was unanimous, although there was a split between the liberal and conservative factions of the court concerning the legal timing of a president’s ability to make such appointments.
The ruling came out of a case filed by Noel Canning, a soft drink bottling company in Washington state, which was challenging an NLRB ruling that the company violated labor law during negotiations for a new collective bargaining agreement with union employees.
The Obama administration claimed the president used his recess appointment powers to name two Democrats — DOL official Sharon Block and union attorney Richard Griffin — and Republican Terence Flynn during the holidays, when the Senate was supposedly not in session.
In early 2013, an appeals court judge in Washington, D.C. ruled that the Senate was in “pro-forma” session — so Obama’s NLRB appointments were unconstitutional.
And the Supreme Court agreed.
And now, the ‘do-overs’
If you’re into legal wrangling, take a look at the Supreme Court’s 50-page decision on the case.
We’re pretty sure, however, that what most employers are most interested in is the answer to one question: What happens to the 600-plus rulings handed down by the NLRB between the interim appointments and official Senate confirmation of NLRB members in 2013?
The answer: Nobody really knows. Actions taken by the current five NLRB members are unaffected by the High Court’s ruling, but the decisions handed down during the tenure of the recess appointments are all now invalid.
Exactly how the Labor Board will handle all those do-overs is anybody’s guess. We’ll keep you posted.