Coolidge Wall Co., L.P.A.
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Validity of 2012-13 NLRB Decisions Hanging in the Balance

In what is more than likely to be one of the most momentous legal controversies of 2014, the U.S. Supreme Court is poised to render a decision that reaches the very foundations of the Republic - and could potentially invalidate hundreds of official actions of the National Labor Relations Board and an even greater number of rules and quasi-judicial determinations by a host of other presidential appointees.

On January 13, 2014, the U.S. Supreme Court heard oral arguments in National Labor Relations Board v. Noel Canning. The case involves an employer's challenge to a determination of the National Labor Relations Board (NLRB). The employer argued that the board's action in the case was invalid because it was taken in contravention of the board's organic statute:

  • The National Labor Relations Act (NLRA) requires the board to have a quorum of at least three validly appointed members to undertake any official action.
  • At the time of the action at issue, the board had five members. However, three had been nominated by the president as recess appointments without the advice and consent of the Senate.
  • The employer argued that because the appointments had been made while the Senate was technically in pro forma session, they were not valid recess appointments and were therefore invalid. From the Latin, meaning "as a matter of form," a pro forma session is a brief meeting of the Senate, often only a few minutes in duration.

The panic began when the U.S. Court of Appeals for the District of Columbia Circuit agreed with the employer's argument and held that the appointments of Richard Griffin, Terence Flynn and Sharon Block to the board were unconstitutional and invalid, leaving the board with only two validly appointed members at the time of its official action. This called into question every action the board had taken between January 9, 2012 and August 2, 2013.

For our clients that were parties to any NLRB proceedings during 2012 or 2013, the upcoming Noel Canning decision could prove very significant. While there is no decision yet from the Supreme Court, decisions are typically rendered within four (4) to six (6) months following oral arguments. Please contact one of the labor and employment attorneys at Coolidge Wall to learn how the decision may affect your business.

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