In an historic decision, the U.S. Supreme Court unanimously ruled that President Obama violated the Recess Appointments Clause of the U.S. Constitution in making three appointments to the National Labor Relations Board on January 4, 2012 without the advice and consent of the Senate. In an opinion by Justice Breyer (9-0 on the judgment, 5-4 on the reasoning), the Court held that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess (intrasession or intersession) of sufficient length, and holds that the appointments here are invalid because they occurred during only a three-day recess. This the first time the Supreme Court has ever addressed the meaning of the Recess Appointments Clause, and the 108 pages of opinions exhaustively analyze the text, structure, and history of the Clause.
The decision provides certainty about the status of hundreds of cases that were unlawfully decided by panels of unconstitutionally appointed members of the Board. The Board will now need to reconsider those cases, and it might also have to reconsider numerous other officials acts, such as appointments of Regional Directors and other Board officials, that were taken by unconstitutionally appointed members of the Board.
As a reminder, set forth below are some of the more important decisions that were decided by the unconstitutionally-appointed Board:
Costco Wholesale Corp.: Invalidated a policy prohibiting employees from making defamatory statements about the company.
Banner Health System: Struck down a blanket rule prohibiting employees from discussing ongoing investigations of misconduct with other employees.
J.W. Marriott Los Angeles at LA Live: Found that an off-duty employee access rule violated the National Labor Relations Act (NLRA) when it prohibited employees from remaining in the building more than 15 minutes after their shifts ended.
Kent Hospital: Eased the type of financial information a union must provide to nonmember objectors, and ruled that a union’s germane lobbying expenses were chargeable to nonmembers even if conducted by another unit in another state.
WKYC-TV, Gannet Co.: Ruled that an employer must continue to deduct union dues from employees’ paychecks after the expiration of a collective bargaining agreement.
Piedmont Gardens: Reversed a decision holding that employee witness statements made to the employer in a grievance case were exempt from being disclosed to a union.
Supply Technologies, LLC: Struck down a non-union employer’s mandatory alternative dispute resolution program because it interferes with an employee’s right to file a claim under the NLRA.
Hispanics United of Buffalo: Ruled that a non-union employer’s firing of employees for posting harassing Facebook comments violated the NLRA.
Fresenius: Held that the employer violated the NLRA when it terminated an employee for writing vulgar, offensive, and threatening statements on materials left in a break room and subsequently lied during the employer’s investigation of the incident.