Sunday, June 29, 2014

Lawyers Weigh In On High Court's Recess Appointment Ruling


"The U.S. Supreme Court on Thursday struck down President Barack Obama's three recess appointments to the National Labor Relations Board, but took a broad view of the president's appointment power."

For employers, the short-term significance is that hundreds of NLRB decisions issued between January 2012 and August 2013 are nullified, including key decisions limiting employer rights in the areas of social media, confidentiality during internal investigations, off-duty employee access to an employer's property, continuation of dues-checkoff even after expiration of a collective bargaining agreement, and the obligation to bargain with a newly certified union before imposing serious discipline. However, that impact is likely to be short lived. As was the case after the 2010 decision in New Process Steel, the board is likely to reaffirm most, if not all, of these decisions in the next six to 12 months. The broader impact is a greater likelihood that the NLRB will experience more episodes of paralysis where it cannot act because of lack of a quorum. Under the court's ruling, it appears either the House or the Senate now can prevent a recess of sufficient length to permit the president to make a recess appointment to fill vacancies at the NLRB - and elsewhere - and so unless one party controls the White House, the Senate and the House, the potential for gridlock on this issue appears greater than ever.


--Jonathan Nadler 

Lawyers Weigh In on High Court's Recess Appointment Ruling 

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