The U.S. Supreme Court, in a 9-0 decision (with a heated split on the reasoning), ruled that the recess appointments to the NLRB made by President Obama during a three-day recess were invalid.
You can download the decision here.
Much of the early instant analysis has focused on the recess appointment power itself. But
As I indicated a few weeks ago, one of the goals of this blog this year is to stop chasing headlines. The latest story about the NLRB demonstrates why.
Late last month, the D.C. Circuit Court of Appeals (which, as you might imagine, only covers Washington D.C.) ruled that recess appointments to the NLRB were invalid, calling into question dozens of decisions by the NLRB. The case, Canning v. NLRB, is not a light read; it’s nearly 50 pages long.
(As an aside, this recess decision should not be confused with the Connecticut General Assembly’s attempt to have labor law taught in the schools, presumably after recess.)
Unfortunately, the first instinct of some employment law blogs was to treat this decision as some type of watershed moment in history without providing the context for private employers — particularly those without unions.
A notable exception was a thoughtful post by the Employer Law Report which was quick to note that “since the various appeals courts are not bound to adopt each other’s opinions, the impact will depend on where the NLRB’s decisions are being challenged and how those courts rule.”
For employers in Connecticut — which falls within the Second Circuit Court of Appeals, and not the D.C. Circuit — that means that the decision is notable, but not yet binding.
Continue Reading Should Private Employers Still Worry About Unions and What Happens at the NLRB?