The Supreme Court has unanimously ruled in NLRB v. Noel Canning that President Obama’s three January 2012 recess appointments to the National Labor Relations Board (NLRB) were unconstitutional. The appointments were made without confirmation by the U.S. Senate during a pro-forma session.
The ruling means that the NLRB was operating without enough members between January 2012 and August 2013, and that the more than 700 reported and unreported NLRB decisions issued during that time are potentially invalid. All of the current board members have been appropriately confirmed by the Senate.
“This is a real victory for businesses that have been subjected to the aggressive regulatory overreach of the NLRB since these commissioners were illegally appointed,” says John McClelland, Ph.D., ARA vice president, government affairs, and chief economist. This ruling will give the Senate greater power in controlling the appointment process and force this and future presidents to follow a process that requires the advice and consent of the Senate.”
The Coalition for a Democratic Workplace (CDW), of which the American Rental Association (ARA) is a member, has been engaged in this issue from the beginning. They began working with Jones Day to identify possible cases where they could intervene and support a challenge to the appointments. Working with partners at the Chamber, the CDW sought to intervene in the case as it was appealed from the NLRB to the U.S. Court of Appeals for the D.C. Circuit. When the intervention was not addressed, focus shifted to support of Noel Canning and its counsel, including the US Chamber’s Litigation Center and Jones Day, as they litigated the case before the Supreme Court and filed an amicus brief on behalf of CDW and its more than 600 association, business and other members.