Yesterday the United States Supreme Court unanimously ruled President Obama's January 2012 recess appointment of three individuals to the National Labor Relations Board (NLRB), all done without Senate confirmation, unconstitutional. By upholding the ruling made by the Court of Appeals for the D.C. Circuit last January, the Supreme Court's decision in NLRB v. Noel Canning agreed that President Obama lacked the constitutional authority to make the NLRB recess appointments.
Unfortunately, the Supreme Court's decision did not address the legality of the actions taken by the NLRB between January 2012 and July 2013. During this time period, as a result of yesterday's ruling, the NLRB did not have the necessary three-member quorum to operate or issue decisions. Currently, there are around 100 cases pending in federal courts that challenge the NLRB's authority to issue decisions during this 18 month period. In all, over 120 NLRB cases may need to be re-visited.
Recent NLRB decisions have expanded or increased employer obligations in the areas of social media policies, internal investigations, and collection of union dues. Employers whose policies and procedures have been impacted by these recent NLRB decisions should continue to follow the issue.