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.”
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.
For more on the Court’s decision on NLRB v. Noel Canning check out:
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.
