NLRB Asks Supreme Court to Overrule DC Circuit’s Decision

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NLRB petitions the Supreme Court for a Writ of Certiorari, or review, of a D.C. Circuit Court ruling that Obama’s NLRB nominees were unconstitutional.

Today, the National Labor Relations Board (NLRB) has filed its petition for U.S. Supreme Court review of the Noel Canning decision. This decision found that Obama’s “recess” appointments to the NLRB were unconstitutional because the appointments did not occur during “the Recess of the Senate”, not “a” recess, meaning an intra-session “recess” doesn’t count, and the vacancies did not “happen during the recess of the Senate.”  Additionally, the Senate was holding pro-forma sessions at the time.

The NLRB’s petition comes at the last possible day that it could be filed, something which has come to be expected of the NLRB. The petition goes into the details of the case, and tries to make the case that since there was no Senate business being conducted during the “pro-forma” sessions, Obama was correct to be able to make appointments during this time.

This goes against the precedent set by the previous administration, where pro-forma sessions were conducted fairly often in order to prevent President George W. Bush from making recess appointments during that time. President Bush had acknowledged and respected the pro-forma sessions, as had President Obama before this point.

Up until now, the NLRB’s position has been that the D.C. Circuit Court’s decision only dealt with the specifics of the single case that was brought before it, but the Supreme Court would have the ability to make a much more sweeping decision.  A sweeping decision could have massive impacts on NLRB cases across the board, which number in the hundreds at this point. These include everything from union elections to the controversial decisions about social media policy.

If the Supreme Court were to find that the members of the NLRB that Obama had appointed were indeed unconstitutional, under the New Process Steel v. National Labor Relations Board case, the decisions made during the time would have to be voided given that there would not have been a quorum of the NLRB present at that time. This may result in a large number of cases that would have to be redone.

Obama’s appointees to the NLRB made some very controversial and anti-employer decisions, which have had an impact on the way some businesses have conducted themselves lately. While some companies may take the position that it’s better to cut their losses at this point, having the chance to re-hear some of the more controversial decisions will definitely help business in the long run. Regardless, the Supreme Court’s ruling will put an end to the uncertainty created by these unconstitutional appointees..


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