The President made appointments to the NLRB to fill vacancies when the Senate was in a pro forma session, not in official recess. The President claimed that although a formal “recess” had not been declared, the Senate was in recess as a practical matter because it was not meeting and conducting business. The United States Supreme Court disagreed.
During the period in which the NLRB made decisions involving the now invalid appointees, approximately 600 employers sustained adverse determinations. Each of those determinations is null and void because the NLRB lacked authority to act due to the improper appointments. Most likely, de novo hearing and review of those vacated decisions will be made by a reconstituted NLRB. Those revised decisions, made by persons appointed in accordance with the law (rather than in violation of it), may result in different outcomes. Of course, spending so much time to rehear and redetermine those cases may strain NLRB resources; it could affect adversely the processing of current cases and throw a monkey wrench into the NLRB’s heretofore pro-labor agenda. The former result is troubling, while the latter is encouraging.
To paraphrase an old television commercial ... it’s not nice to fool with the Constitution.