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United States Supreme Court Finds Obama’s National Labor Relations Board (NLRB) Appointments Invalid

In a ruling that will have far reaching implications for future Presidential appointments, the U.S. Supreme Court today struck down three Obama recess appointments to the National Labor Relations Board (NLRB v. NOEL CANNING ET AL.)

For the NLRB, it means the current Board members will be forced to revisit hundreds of decisions issued by the members who were appointed by President Obama in January 2012. The NLRB now has a full complement of Senate-confirmed Board members who can now revisit the decisions. NLRB Chairman Pearce issued a statement today pledging the Board would work diligently to review those past decisions invalidated by today's ruling.

However, the practical implications for employers are not fully clear. NLRB decisions issued by the invalidated Board no longer have the force of law, but employers should assume those decisions will be reissued after review by the current Board. It is also likely that Board action on pending cases and initiatives may be delayed while it goes through the process of re-evaluating those past cases.

The Court's decision did make clear the President has the right to make future recess appointments but not when the Senate states it is not in recess and when the recess is of short duration. During the recess at issue in this case, the Senate did not officially recess and instead used pro forma sessions every three days to stay in session. Accordingly, the President's decision to use the recess appointment power was unconstitutional. This is a classic case of Constitutional separation of powers issues but because of the federal agency involved, it also has implications for all private sector employers subject to the NLRB's jurisdiction.

© Copyright 2020 Armstrong Teasdale LLP. All rights reserved National Law Review, Volume IV, Number 177


About this Author

Michael Kass, Labor, Employment, Attorney, Armstrong Teasdale, law firm

Michael Kass is chair of Armstrong Teasdale's Employment and Labor Law practice group and is a former co-chair of the firm's Non-Compete/Trade Secrets practice group. He guides organizations, from small closely-held businesses to Fortune 100 companies, through the complex issues faced when managing employees.

Michael defends employers and their managers in state and federal courts and before administrative agencies such as the Equal Employment Opportunity Commission, the Missouri Commission on Human Rights, the U.S. Department of Labor and the National Labor Relations Board. Such...

Shelley Ericsson, Labor, Employment, Attorney, Armstrong Teasdale, law firm

Shelley Ericsson provides practical, sophisticated advice to complex legal problems unique to the labor and employment arena.

In state and federal courts and before state, federal, and local administrative agencies, Shelley defends employers in matters involving claims of discrimination, harassment, retaliation and wages. With a deep knowledge of employment law policies and an eye on the ever-changing economic reality, she litigates matters such as Title VII, Section 1981, the Age Discrimination in Employment Act (ADEA), the Fair Labor Standards Act (FLSA), the Americans with...

Jovita M. Foster, Armstrong Teasdale Law Firm, Labor Law Attorney

Jovita Foster is an accomplished litigator working with small- to medium-sized businesses, public utilities, and Fortune 100 and 500 companies in all facets of employment and labor law.

In state and federal jurisdictions and in front of the Appeals Tribunal, Jovita defends employers and managers in disputes involving claims of discrimination, retaliation, violations of public policy, sexual harassment, wrongful termination, and unemployment appeals. She successfully defends employers and managers in arbitration. Jovita also represents broker-dealers in...