Appeals Court Overturns Obama Recess Appointments to the NLRB

Another battle is brewing over the NLRB.

As USA Today reports, “A federal appeals court said Friday that President Obama overstepped his authority with a series of recess appointments to the National Labor Relations Board.

But as the story adds, “The case may wind up in the Supreme Court, and determine how far the president can go in appointing people whose nominations would be filibustered in the Senate.”

Hundreds of NLRB rulings now in question

The controversial move by the president to side-step the U.S. Senate and make three appointments to the NLRB last January was overturned Friday by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. In a unanimous decision, they said that “Obama did not have the power to make three recess appointments last year to the National Labor Relations Board,” according to an Associated Press report in The New York Times. The story added:

The Obama administration is expected to appeal the decision to the U.S. Supreme Court, but if it stands, it means hundreds of decisions issued by the board over more than a year are invalid. It also would leave the five-member labor board with just one validly appointed member, effectively shutting it down. The board is allowed to issue decisions only when it has at least three sitting members.”

And as another New York Times story notes:

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The Obama administration has repeatedly asserted that the appointments to the NLRB were legitimate because he made them when the Senate was away during a 20-day holiday recess a year ago. The appeals court strongly disagreed, ruling that the Senate was technically in session because it was gaveled in and out every few days as part of a tactic that created “pro forma” sessions.

Both Republican and Democratic lawmakers have used the tactic of “pro forma” session to block presidents from making recess appointments.”

Ruling will probably be decided by Supreme Court

The point that hundreds of decisions over the last year may now be invalid is important, because the NLRB has been relentlessly aggressive about digging into all manner of workplace practices from telling employers what they can and can’t do in their social media policies to striking down requirements that workers use arbitration instead of taking workplace claims to court.

Don’t be surprised if the Supreme Court not only takes on this case, but rules on it fairly quickly  — probably before the end of this term in June — given that so many previous NLRB rulings are now up in the air due to the Appeals Court decision.

The National Labor Relations Board describes itself as “an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.”

John Hollon is Editor-at-Large at ERE Media and was the founding Editor of A longtime newspaper, magazine, and business journal editor, John has deep roots in the talent management space. He's the former Editor of Workforce Management magazine and, served as Editor of RecruitingDaily, and was Vice President for Content at HR technology firm Checkster. An award-winning journalist, John has written extensively about HR, talent management, leadership, and smart business practices, including for the popular Fistful of Talent blog. Contact him at, connect with him on LinkedIn, or follow him on Twitter @johnhollon.


1 Comment on “Appeals Court Overturns Obama Recess Appointments to the NLRB

  1. John – Thanks for keeping us up-to-date on federal policymaking and its impact on workplace issues. Look forward to seeing more.

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