By Eric B. Meyer
In a unanimous opinion delivered yesterday in the case NLRB v. Noel Canning, the United States Supreme Court concluded that President Obama’s so-called “recess appointments” of three of the five members of the National Labor Relations Board between the Senate’s Jan. 3 and Jan. 6 pro forma sessions were unconstitutional.
Amy Howe from SCOTUSblog.com summarized the decision “in plain English”:
[A]ny recess that is shorter than three days is not long enough to make a recess appointment necessary. And a recess that is longer than three days but shorter than 10 days will, in the normal case, also be too short to necessitate a recess appointment.” …
[T]he Senate can prevent the President from making recess appointments even during its longer recesses by holding “pro forma” sessions – that is, sessions at which no work actually gets done – every three days.”
Void cases will be taken up by current NLRB
So, there you have it. The net effect of this opinion is that any NLRB decision rendered with the three improperly-appointed NLRB members is void of lack of a quorum. (Previously, the Supreme Court held here that the Board is powerless to rule with less than a quorum of three members).
Although, with a full quorum now, you’d expect that those case would eventually be affirmed by the current NLRB.
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For more on the Court’s decision on NLRB v. Noel Canning check out:
- Josh Gerstein at Politico with Barack Obama’s recess gamble goes bust;
- Statement of NLRB Chairman Mark Gaston Pearce on the Supreme Court’s Noel Canning decision;
- Steven Greenhouse and Adam Liptak at NYTimes.com with Impact of the Court’s Ruling on Recess Appointments.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.