On June 26, the Supreme Court decided National Labor Relations Board v. Noel Canning, et al.[1] This decision will have long-term significance on the ability of federal administrative/regulatory agencies (often referred to as the 4th branch of government) constituted by presidential appointees, to carry out their mission.
From a constitutional perspective, this decision is significant because it limits the president’s power to use recess appointments – a key vehicle for the exercise of executive authority. The Court held that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. In practice, the decision, therefore, precludes the president from appointing individuals of his choice, who are not likely to survive the Senate’s confirmation process, to key government positions, except during periods when the Senate agrees that it is not in session. This limitation on presidential power is a huge victory for the Senate as it significantly enhances its power to deny consent to presidential appointments.
From the labor law perspective, Noel Canning will require the National Labor Relations Board (NLRB) to re-decide as many as a few hundred cases that had been decided by recess appointees – that is, individuals who acted as NLRB members without Senate confirmation.
Some of the significant issues which the NLRB will have to re-decide include: the protection that should be given to social media communications among off-duty employees regarding work performance and working conditions; an employer's duty to continue union dues checkoff after the union contract expires; the degree of confidentiality that may be imposed on employees regarding ongoing disciplinary investigations; and whether unions are entitled to witness statements regarding disciplinary investigations.
[1] 573 U.S.___ (2014)
