U.S. Supreme Court Rejects NLRB Appointments

Jun 26 2014 - Social Media, Workplace Policies - Gail Cecchettini Whaley

Today, the U.S. Supreme Court unanimously concluded that President Obama’s “recess” appointments to the National Labor Relations Board (NLRB) were invalid. The case is National Labor Relations Board v. Noel Canning.

In order for the NLRB to issue valid decisions, it must have a legally authorized “quorum” – a minimum number of members that must be present to make the proceedings valid. Noel Canning, a Pepsi-Cola distributor, asked the Court to set aside an NLRB order. Noel Canning claimed that the NLRB lacked a valid quorum at the time it issued the order because three of the five NLRB members had been invalidly appointed by President Obama during a short break in the Senate.

In today’s decision, the Supreme Court agreed that the appointments were unlawful and placed limits on the ability of presidents to make recess appointments.

In addition to its key impact on presidential powers, the case is important for employers because it calls into question the validity of several key decisions issued by the NLRB during the time that it did not have a legally required quorum. During the time in question, the NLRB issued significant orders relating to workplace investigations, discipline of employees for social media usage and employer handbook policies.

This case could result in the reversal of many of these NLRB decisions, including decisions that impact employers in all workplaces, both union and nonunion. At the least, it causes uncertainty regarding these decisions.

National Labor Relations Board Chairman Mark Gaston Pearce issued a statement indicating that the NLRB is “analyzing the impact” of today’s decision on the cases in which the recess appointees participated. According to Pearce, “[t]he Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.”

In the interim, employers should wait for further information from the NLRB before disregarding any opinions issued while the invalid Board was in place. If you have any questions regarding this decision and how it may impact your workplace, seek advice of counsel.

Gail Cecchettini Whaley, CalChamber Employment Law Counsel/Content

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