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José J. Santiago

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US SUPREME COURT INVALIDATES NLRB RECESS APPOINTMENTS

FATE OF HUNDREDS OF BOARD DECISIONS IN DOUBT

 

On June 26, 2014, the Supreme Court unanimously invalidated three 2012 National Labor Relations Board recess appointments made by President Barak Obama, NLRB v. Noel Canning, et al, 573 US __. This decision does not affect the present composition of the Board since the Senate approved a full slate of new members on August 2013.

The Supreme Court ruled that the recess appointments violated the US Constitution.

 

The decision potentially invalidates hundreds of decisions issued by the Board from January 2012 and August 2013, many of which controversially overturned longstanding NLRB precedent (see Labor Watch Vol. 13, No.1)

 

In a July 9, 2014 webinar sponsored by the American Bar Association, National Labor Relations Board General Counsel Richard Griffin discussed the various steps the Board is taking in light of the Noel Canning decision. Griffin said that there are 98 cases before federal courts involving decisions by the recess appointees. Where appropriate, the Board has set aside the order at issue and has filed motions to dismiss. In other cases, the Board has filed motions requesting the court to vacate and remand the matter to the Board. To date, the courts have returned nine cases to the Board.

 

With respect to the decisions that were not appealed, Griffin acknowledged that they do not have precedential value, but said that his position is the reasoning behind those decisions should be considered persuasive and adopted. Since the Board still has a Democratic majority, it is expected that the current NLRB will likely adopt or reissue the majority of the invalidated NLRB decisions.

 

©2014 Fiddler, González & Rodríguez, P.S.C. This Watch has been prepared by Fiddler, González & Rodríguez, P.S.C. for informational purposes only and does not constitute legal advice. This information does not create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this without seeking advice from professional advisers. Fiddler, González & Rodríguez, P.S.C. and its members assume no responsibility to inform you of additional changes in law or any other legal issues related to the matters discussed in this e-mail.

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