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Thursday, June 27, 2013

NLRB v. Noel Canning: Supreme Court Will Decide Constitutionality of NLRB Recess Appointments

On January 4, 2012, President Obama used recess appointments to name three members to the National Labor Relations Board. On January 25, 2013, the Court of Appeals for the D.C. Circuit held that the President lacked constitutional authority to make these recess appointments. Noel Canning v. NLRB, 705 F.3d 490, (D.C. Cir., 1/25/13) (discussed here).

On June 24, the United States Supreme Court announced that it will review that decision in NLRB v. Noel Canning (Case No. 12-1115). The Supreme Court's web page for the case is here. SCOTUSblog's web page for it is here

Assuming that the Supreme Court agrees with the D.C. Circuit, Noel Canning would invalidate a host of NLRB rulings, including the one in In re DR Horton, Inc., 357 NLRB 184-2012 (discussed here). Although the NLRB decided Horton on January 3, 2012, the day before President Obama made the recess appointments at issue in Noel Canning, one of the three Board members who signed off on Horton, Craig Becker, was himself the subject of a recess appointment on March 27, 2010.

We have added Noel Canning to our Watch List of pending cases.

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