The U.S. Supreme Court decided today to hear the highly disputed case involving President Obama’s recess appointments to the National Labor Relations Board.
The decision could ultimately affect hundreds of decisions by the NLRB, many of them made after two appeals-court decisions declared the recess appointments to be unconstitutional. (Here is my past blog post on those decisions, including links with some comments and “no comments” from the NLRB.)
The high court’s decision today to hear the appeal in the case of Noel Canning v. NLRB has “broad ramifications for the [board], and all employers who may come before the agency,” says Steven Bernstein, an attorney with Fisher & Phillips. If upheld on appeal, the case not only threatens to overturn hundreds of cases decided in the past 18 months, as mentioned above, but “may ultimately put the agency into cold storage for some time, barring any political compromises that would allow the board to continue functioning prospectively,” says Bernstein.
The next big question, says Ronald Meisburg, Washington-based partner and co-head of Proskauer’s Labor-Management Relations Group, “is whether the D.C. Circuit or the Supreme Court will order the board to stop issuing decisions.” That group of cases [decided after the Noel Canning ruling declared the recess appointments — and therefore the makeup of the NLRB — unconstitutional] will be argued in September in the D.C. Circuit.
I blogged about these post-Noel Canning cases as well, just after the House Education and the Workforce Committee’s passage during the March 18 week of a bill requiring the NLRB to cease all decision-making until the legal status of the board’s members is resolved. That link also includes one to the entire case history. Complete with a boxing-match illustration, it also suggests a standoff was going on between the NLRB and the House. And this analysis on our website, HREOnline, offers a detailed look at the political chess game and legal tug-of-war Obama and other presidents have played with NLRB appointments.
No date has been set yet for the Supreme Court hearing, but this link from the LegalTimes blog does include the high court’s orders list.
Whatever comes of the hearing, “one thing remains certain,” says Bernstein. “The agency’s authority will continue to swirl in uncertainty until the matter is resolved, which may not happen until early next year. In the meantime, employers and unions alike are expected to continue asserting challenges to the NLRB’s legal authority.”