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Updated: National Labor Relations Board v. Noel Canning, United States Supreme Court


Earlier this year, I had highlighted the National Labor Relations Board v. Noel Canning as one of the premier labor cases before the US Supreme Court to keep an eye on (National Labor Relations Board v. Noel Canning - Blog).  For those readers needing a bit of a refresher, President Obama had appointed three members to three open board spots at the NLRB when the President declared the Senate was in recess and he was therefore exercising his recess-appointment power to fill the vacancies.  In essence, there were three main issues in the case:

  • (1) Whether the President’s recess-appointment power may be exercised during a recess that occurs within a  Senate session, or is instead limited to recesses that occur between enumerated sessions of the Senate;
  • (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and 
  • (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions. 

The Supreme Court recently handed down its decision on the case and, by unanimous decision, held that the US Senate was not in recess when President Obama made three recess appointments to the National Labor Relations Board and therefore all NLRB decisions and actions from August 27, 2011 through July 17, 2013 were not valid.  This was a somewhat surprising unanimous decision, given that there are several liberal leaning justices on the Supreme Court that agreed that the recess appointments were invalid.  The Supreme Court's ruling upheld the US Court of Appeals for the District of Columbia Circuit which found that the panel of the NLRB that had decided an unfair labor practice case against Noel Canning (a Pepsi bottler), was unconstitutionally constituted and therefore the NLRB's decision was invalid.  

Now, the question becomes what will happen to all the NLRB decisions and actions which are now in doubt.  In all likelihood, given the political leaning of the NLRB at this time, I would expect a majority of those decisions and actions to be held to be valid.  There is a chance that some of the smaller unreported cases will be held to be invalid (as those are often less publicized and sometimes present less precedential or pressing labor issues). 

A copy of the Supreme Court's opinion can be found here:  http://www.managementmemo.com/files/2014/06/12-1281_bodg.pdf

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