The Supreme Court has today decided the Noel Canning case. We are analyzing the impact that the Court’s decision has on Board cases in which the January 2012 recess appointees participated. Today, the National Labor Relations Board has a full contingent of five Senate-confirmed members who are prepared to fulfill our responsibility to enforce the National Labor Relations Act. The Agency is committed to resolving any cases affected by today’s decision as expeditiously as possible.
We are continuing to review the Court’s decision, and attempting to assess the impact of this unprecedented development. As pointed out in an earlier post, the Board’s protocols following the Supreme Court’s New Process Steel decision provide little guidance, as only 100 or so decisions were invalidated. And the holdings in all of those cases were bipartisan 2-0 decisions on non-controversial application of well-settled precedent. Depending on the application of the Supreme Court’s decision here, hundreds, (some have speculated possibly thousands) of decisions and administrative actions could be at issue. As discussed at a hearing before the House Health, Education, Labor & Pensions Subcommittee earlier this week, many of the decisions by the most recent “recess” appointees, have sought to overturn and/or depart significantly from longstanding precedent. Figuring out how to process and reconsider all of these decisions — potentially between now and the time Member Nancy Schiffer’s term expires this December — is not going to be an easy task.