Supreme Court could invalidate over 700 recent NLRB decisions, but maybe only for the short-term

The U.S. Supreme Court heard oral arguments in NLRB v. Noel Canning, which could invalidate over 700 decisions of the Obama Board.  The Supreme Court heard three questions:  First, whether recess appointments are only valid for appointments the President makes in between two formal sessions of the Senate; second, whether the President has the power to make a recess appointment to a vacancy that existed before the recess; and, third, whether the President can make a recess appointment when the Senate is engaged in “pro forma” session.

In Noel Canning, a union filed an unfair labor practice charge against a bottling company for refusing to enter into a collective bargaining agreement in violation of the NLRA.  In 2012, the NLRB, composed with two members who were recess appointments, ruled that the bottling company, Noel Canning, violated the NLRA and ordered it to sign the collective bargaining agreement.  The D.C. Circuit Court of Appeals invalidated the NLRB’s decision and ruled in favor of Noel Canning because it said the Board was composed of improper recess-appointed members.  The NLRB appealed to the U.S. Supreme Court.

At oral argument, many of the Supreme Court Justices seemed to accept that the U.S. Senate could block recess appointments by refusing to go into recess.  At one point Justice Stephen Breyer said, “Now, that’s a political problem, not a constitutional problem . . . . Where is it in the history of this clause, in its origination, that it has a purpose to allow the President to try to overcome political disagreement?”

A decision in favor of Noel Canning would have the short-term effect of invalidating over 700 board decisions of the Obama Board when it was composed of recess-appointed members.  However, the current Obama Board could ratify all the prior actions, similar to what the NLRB did in response to New Process Steel v. NLRB,when the U.S. Supreme Court invalidated over 500 decisions by finding that the NLRB did not have a quorum.

We will continue to keep you updated on the status of this case and others.

By Anthony Tucci | January 14, 2014

Legal Developments