Senate Confirms President Obama's NLRB Nominees, But This Development Is Unlikely To Render Noel Canning Moot

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As part of a deal to avoid changes to its filibuster rules, the Senate last week confirmed President Obama’s nominees to the National Labor Relations Board (NLRB). The NLRB now has a complete Board confirmed by the Senate for the first time in ten years. More importantly, the NLRB also has a quorum to operate. Less certain is what will happen to the appeal in Noel Canning pending before the U.S. Supreme Court. The NLRB is appealing Noel Canning, a decision by the federal Court of Appeals for the District of Columbia holding that President Obama’s three recess appointments to the NLRB in 2011 were unconstitutional, thereby potentially nullifying all NLRB decisions issued since 2011. The Supreme Court may be faced with the additional question of whether the recent Senate confirmation of the NLRB members moots the Noel Canning case. Some legal scholars have pointed out that Section 160 of the National Labor Relations Act provides that the NLRB loses jurisdiction over cases once an appeal is filed. In other words, the NLRB may be legally prohibited from taking action on any previous ruling while that ruling is being appealed. The initial Supreme Court brief in Noel Canning is due on September 15, 2013, and a final decision is not expected until 2014. There are likely to be more twists and turns before this issue is resolved.