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Supreme Court Update
 

    
 

On Monday, January 13, the U.S. Supreme Court heard oral argument in National Labor Relations Board v. Noel Canning. SHRM submitted an amicus brief in this case supporting the employer, Noel Canning, and arguing that the president’s recess appointment of three members to the National Labor Relations Board (NLRB) without the advice and consent of the Senate was unconstitutional. If the appointments are ruled unconstitutional, the decision could render hundreds of NLRB decisions affecting the workplace invalid.

In this case, the NLRB (with the three recess-appointed members) ruled against Noel Canning, a soft-drink bottling company, on an unfair labor practice case. Noel Canning challenged the NLRB’s decision in the U.S. Court of Appeals for the D.C. Circuit on the grounds that the NLRB was improperly constituted at the time it ruled against the company.

SHRM, along with its coalition partner, the Coalition for a Democratic Workplace, filed briefs in support of Noel Canning as the case progressed to the Supreme Court. When it renders its opinion later this summer, the Supreme Court will decide three questions, each hinging on the interplay between the president’s constitutional powers of recess appointment and Congress’ rules and procedures: 1) whether the president can only make “recess appointments” when the Senate is in recess between sessions of Congress and not when the recess occurs within a session; 2) whether the president can only fill vacancies that open up during a recess; and 3) whether the Senate can be considered to be in recess when it is convening in periodic “pro forma” sessions. To read SHRM’s brief, click HERE.

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