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Back to Square One at the NLRB

Published:  June 27, 2014

The National Labor Relations Board (NLRB) is left wondering what is going to happen after the Supreme Court invalidated three appointments by President Obama.

On January 4, 2012, President Obama made three NLRB member recess appointments. The United States’ Constitution has a clause that allows the President to make appointments without Senate approval when the Senate is in recess. Therefore, when the Senate went into recess in 2012 and there were three vacancies on the National Labor Relations Board, President Obama decided to appoint new members to fill the empty seats. However, the Supreme Court has reasoned that these appointments are invalid because the Senate was not truly in a “recess” when it did not meet from January 3-6, 2012. The Opinion states, “Three days is too short a time to bring a recess within the scope of the Clause.”

Now that these appointments have been deemed invalid by the highest Court, the NLRB is scrambling to determine what the future holds for the approximately 436 decisions made during that time. Notably, one decision that is now in question changed the workplace landscape by protecting workers from being fired for complaining about their employment on social media. However, while all cases are now invalid as only two properly-appointed members of the five-member board were in attendance (at least three valid members would need to be in attendance to allow the decisions to stand), it is unclear if the cases will be decided the same way if and when they are reconsidered.

If you have any questions regarding the National Labor Relations Board and their decisions, please contact any of the attorneys at Royal LLP at (413) 586-2288.