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Supreme Court Opinion Calls into Question Hundreds of NLRB Rulings

By Matthew C. Lonergan and Anne Knox Averitt

On June 26, 2014, the Supreme Court issued its long-awaited Noel Canning decision (NLRB v. Noel Canning, 572 U.S. ____ (2014)), and invalidated President Obama's January 2012 appointments of three individuals to the National Labor Relations Board (the NLRB or Board): Terence Flynn, Richard Griffin, and Sharon Block. The Court held that while the President can make appointments during a Senate recess under the Constitution's recess appointments clause, the Senate's break in January 2012 was too short to constitute a recess. The Board cannot conduct business without a three-member quorum, so the holding calls into question hundreds of labor decisions issued while those appointees were seated. The NLRB decided 436 cases without a quorum during the 18 months that two of the appointees served on the Board (the third stepped down after only a few months).

The current Board, all of whose members were confirmed by the Senate, must now decide if revisiting each of the 436 rulings will be necessary to preempt additional challenges. Reconsideration of the decisions is unlikely to make a difference in most cases, as both the previous and current Boards have been Democrat-controlled. Companies have challenged over 100 of these NLRB opinions in federal court, and at least one case is pending in each of the 12 federal circuit courts. The courts will likely remand these cases to the Board for reconsideration.

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