Long Term Consequences of the Noel Canning Decision

By now, you have probably heard that the United States Supreme Court invalided President Obama’s recess appointments to the National Labor Relations Board because they were unconstitutionally made at a time when Congress was not in recess. You also probably know that the NLRB has to review the hundreds of cases unlawfully rendered as a result of the unconstitutional recess appointments. If not, then you should read our June 26th Client Alert covering the Noel Canning case. What follows is a glimpse of the long-term consequences of Noel Canning.

Board Members have historically been nominated by the President and confirmed by at least 60 votes in the Senate. In November 2013, to avoid a filibuster that would have effectively shut down the federal government, the Senate invoked the so-called “nuclear option” to eliminate this requirement. Now, 51 votes (out of 100 Senators) are needed to be confirmed. Democrats currently enjoy a 53-member majority in the Senate, so Republicans have no way to block an executive nominee.

Of the 36 seats up for grabs in the November mid-term elections, 21 are filled by Democrats and 15 by Republicans. The changing of a few seats from Democrats to Republicans would give the Republicans the 51 seats needed to force President Obama to negotiate with the Senate any future NLRB Board Member nominees.

Democrat Board Member Nancy Schiffer’s term expires on December 16, 2014. Her departure leaves a 2-2 split between Republican and Democrat Members and ends the Board’s ability to effectuate its activist, pro-union agenda – but only if Republicans fill at least 51 seats in the Senate. If Republicans do not occupy a majority of the seats in the Senate, President Obama’s nominee to replace Ms. Schiffer (and Democrat Member Mr. Hirozawa in August 2016) will be rubber stamped by the Democrat-led Senate.

Basically, the NLRB has the next six months to do as much as possible to help unions. So, we should expect an even more activist NLRB for the remainder of this year. And if Republicans do not take back the Senate this fall, the NLRB that we have grown accustomed to knowing will continue for at least the next few years.