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High Court Overturns NLRB Recess Appointments

Volume 2, Issue 12
June 30th, 2014
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The Supreme Court ruled unanimously that President Obama overstepped his constitutional authority when he made three recess appointments to the National Labor Relations Board in 2012.

LaborProtests-300x225The question for employers, of course, is what impact the decision will have. The answer is simple: A lot for the nation in general, but not very much for employers at this point.

The impact will be significant in terms of how our Presidents make future recess appointments. Under the Constitution, the President is permitted to make “acting” appointments to boards and agencies where those positions require Senate approval when the Senate is in recess for 10 days.

However, when Obama made the NLRB appointments at the beginning of 2012 the Senate was holding “pro forma” sessions every few days presumably with the intention of staving off just such recess appointments.

The Administration’s reasoning was that these sessions were phony and thus the Senate was really in recess. (During one of the three sessions in question there was actually a vote to extend unemployment benefits.)

One of the ironies of the situation is that the Senate’s practice of holding “pro forma” sessions was introduced by Sen. Harry Reid (D-NV) to block recess appointments by President George W. Bush.

There also was the unseemly act of Obama asserting which Senate rules were phony, when the separation of powers principle embodied in the Constitution clearly holds that the House of Representatives and Senate are responsible for making their own rules that govern their bodies, which the Executive Branch has no business interfering with.

The unanimous Supreme Court decision is important because it reasserts this principle and establishes a strong legal precedent we can hope will make it less likely that a future President will indulge in the same kind of overreach.

Senate Minority Leader Mitch McConnell (R-KY), said, “This administration has a tendency to abide by laws that it likes and to disregard those it doesn’t. The president made an unprecedented power grab by placing political allies at a powerful federal agency while the Senate was meeting regularly and without even bothering to wait for its advice and consent.”

Board May Undo Damage

When it comes to the impact on the NLRB and on employers, the high court decision created a bit of a mess regarding individual case decisions, but in reality has no impact on the major rule makings of concern to employers.

Late in 2013 the President cut a deal with Senate Republicans that allowed the approval of a new slate of NLRB board members. The new board quickly withdrew the most important rulemaking that was approved by the recess appointees – the ambush union election rules – and then reissued them earlier this year. (AA, 2-15-14, P. 2)

The main problem is that the Supreme Court ruling also invalidates all of the decisions in individual cases that had been voted on by the NLRB in the 19 months between the recess appointments in January 2012 and the seating of the new board late last year.

Several years ago a similar situation arose when 500 decisions made by the NLRB were ruled invalid because the board lacked a proper quorum. Ironically, this happened because Senate Democrats had blocked President Bush’s appointees.

The solution following that court decision was simple but time consuming – the new board can reconsider those decisions and vote on them again. In some cases, the parties involved have moved on and the legal controversies are no longer of concern, or at least not enough to justify being re-argued.

“The impact of today’s ruling is far less than it might have been,” said President AFL-CIO Richard Trumka, when the decision was announced. “We are confident the NLRB will handle the pending cases impacted efficiently and expeditiously.”

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