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How NLRB v. Noel Canning Could Impact Labor Policy

Every so often, a case comes along that can rightly be called a landmark decision because it has exceptionally broad ramifications and fundamentally changes the legal landscape. It seems, however, that such landmark cases have become peculiarly common of late. With the legal community still mulling over the impact of the Windsor decision from 2013, the United States Supreme Court now takes up a case — NLRB v. Noel Canning — that could fundamentally alter the power dynamic between the federal executive and legislative branches as well as potentially invalidate scores of quasijudicial determinations by the National Labor Relations Board (NLRB).

In January 2014, the Court heard arguments concerning the NLRB’s appeal from a prior appellate court decision that several appointments to the Board who served between January 2012 and August 2013 were illegally made as recess appointments by President Barack Obama while the Senate was technically in pro forma session. If this logic holds, the NLRB did not have the required quorum of three members for much of 2012 and 2013, rendering it unable to legally act during that period. This could have a broad impact on the Board and its surrounding apparatus because it might invalidate:

  • At least 1,400 Board decisions made in 2012 and 2013
  • Union certifications during the suspect period
  • Board-issued subpoenas
  • Appointment by the Board of several NLRB regional office directors as well as the determinations they have made

The potential effects are not limited to the NLRB. The authority of numerous other appointees could be called into question and administrative acts going as far back as the 1920s could be challenged. Attorneys practicing in labor relations law should closely follow this case as they await the Supreme Court’s decision on this issue.

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