The National Labor Relations Board (“NLRB” or “the Board”) investigates charges of unfair labor practices, remedies those practices where they exist, and conducts elections for labor union representation. In January 2012, during a three day Senate adjournment, President Obama filled three vacancies on the NLRB. However, in N.L.R.B. v. Noel Canning, the Supreme Court invalidated these appointments, potentially nullifying hundreds of NLRB decisions.
Generally, the President may not appoint individuals to the NLRB without the consent of the Senate unless it is in recess. In January 2012, the Senate began meeting only once every three days, in place of holding ordinary sessions. President Obama’s appointments during this pro forma period gave the NLRB the number of members legally required for it to operate.
Noel Canning, a bottling company, challenged an adverse NLRB decision on grounds that the President’s appointments were unconstitutional, invalidating the Board’s actions for lacking the necessary number of members. The Court agreed, overturning the decisions made by these Board members.
More than 400 decisions were issued by the Board before the Senate legitimized President Obama’s appointees. The current Board will review each of the overturned decisions, and it will likely affirm the vast majority of them. Given the high probability that the invalidated decisions will be re-adopted, employers would be wise to continue following their guidelines to avoid potential unfair labor practices.