US Supreme Court Strikes Down President’s Recess Appointments to the NLRB

    View Authors June 2014

    Decisions issued by National Labor Relations Board between January 4, 2012 and August 13, 2013 now void.

    In the words of Yogi Berra, it’s déjà vu all over again at the National Labor Relations Board (NLRB or Board).

    Back in late 2007, due to congressional deadlock over then-President Bush’s nominees to the NLRB, new NLRB members had not been confirmed before the terms of three of its members expired, leaving the Board with only two members. To deal with this situation, the NLRB contrived a strategy that attempted to delegate the Board’s authority to issue decisions to only two members, even though Section 3(b) of the National Labor Relations Act (the Act) states that the Board cannot act without a quorum of three out of its five members. It was, therefore, little surprise that in 2010 the US Supreme Court, in New Process Steel, L.P. v. NLRB ruled that the NLRB’s end-run around the plain language of the Act was illegal. The consequence: more than 600 decisions issued by the two-member Board were deemed void and a new, properly constituted Board had to reconsider and issue new decisions in a substantial number of those cases.