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NLRB Recess Appointments Deemed Unconstitutional By Supreme Court

The Supreme Court’s recent decision in NLRB vs. Noel Canning declared President Obama’s “recess” appointments to the National Labor Relations Board unconstitutional, thus calling into question hundreds of rulings resolving workplace disputes decided by the illegal appointees.

What was the case?

Noel Canning, a bottling company that distributes Pepsi products in Yakima, Wash., was charged with unfair labor practices in connection with contract negotiations with its Teamsters in 2010. An administrative law judge ruled against the company, and on appeal, a three-member panel of the board—including two of the recess appointees—agreed.

Canning, which sided with Republicans, filed a lawsuit against the NLRB. Its claim: The board had no authority to issue an earlier ruling against it in a dispute with a labor union. The reason? The recess appointments were invalid and therefore the five-seat labor board lacked the required quorum of three members to issue such rulings, the company said.

In January 2013, the U.S. Court of Appeals for the District of Columbia Circuit sided with Noel Canning in the case, and the Obama administration appealed it to the Supreme Court.

What was the ruling?

The Supreme Court ruled three appointments President Obama made on Jan. 4, 2012, to fill out the five-member National Labor Relations Board, were improper because the Senate was not, in fact, in recess. That means the NLRB did not have a quorum, as required by law, when it ruled on hundreds of cases from the time they were appointed until August 2013, when other nominees were properly confirmed by the Senate and sworn in as members. This, in turn, calls into question all the decisions the NLRB rendered during that time.

What is the impact of this ruling?

Now, the NLRB may have to reconsider every case that was appealed to the federal appellate courts on the basis of the lack of a quorum, as well as an unknown number of other cases decided by the board in which the unconstitutional recess appointees participated.

Moreover, parties that lost their cases during this time but had yet to appeal to a federal appellate court may still be able to appeal because the National Labor Relations Act does not include a statute of limitations for appeals.

However, since the new NLRB is dominated by Obama administration appointees who share the same philosophy as the old board, many labor experts believe that few of the existing decisions will turn out differently.

The practical effect of the ruling will be to make a great deal of work for the current NLRB, which has a majority of Obama appointees and has an aggressive agenda to put in hurry-up election rules for union representation and allow organizers to use company e-mail to recruit workers. If Republicans win the Senate in November, Obama may lose his majority when the term of Nancy Schiffer, a former AFL-CIO lawyer, expires the following month.

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Florida 561-653-0008 California 213-377-5200
* Cathleen Scott is licensed to practice in Florida only.

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