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The U.S. Supreme Court ruled today that President Obama's January 2012 recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. Noel Canning v. NLRB, Case No. 12-1281 (June 26, 2014), has been closely watched by observers because of the constitutional issues involved and its potential to set aside a number of controversial decisions issued by the NLRB in 2012 and 2013.

In today's decision, the Court found that the President lacked the constitutional authority to make the recess appointments because the Senate was not actually in recess when the appointments were made. A prior Supreme Court ruling found that the NLRB needs three validly appointed members to have a quorum to operate. As such, effectively all of the Board's decisions issued between January 2012, when the recess appointments were made, through July 2013, when the President struck a deal with Congress that resulted in the confirmation of new appointments to the NLRB, have been invalidated.

The Supreme Court's ruling is not only a significant development regarding the appointment powers of the President and the role of Congress in those appointments, it will also require current NLRB members to reconsider a wide variety of controversial decisions issued by their predecessors. Those decisions included rulings that:

  • substantially changed the law on employer regulation of social media activities;
  • tried to outlaw many employee arbitration agreements;
  • restricted the ability of employers to maintain the confidentiality of workplace investigations;
  • required employers to continue collecting dues from employees after union contracts expired; and
  • required employers to disclose almost all witnesses statements to unions if unions requested them.

If you have any questions regarding this update, please contact Kenneth F. Sparks at +1 (312) 609 7877, J. Kevin Hennessy at +1 (312) 609 7868, Andrew Oppenheimer at +1 (312) 609 7664, or the Vedder Price attorney with whom you have previously worked.


Kenneth F. Sparks