The National Labor Relations Board through November 5 has reconsidered 35 decisions issued by Board panels found to be invalidly constituted under the Supreme Court’s ruling in NLRB v. Noel Canning.  Not surprisingly, in all of the decisions it has reconsidered, the NLRB reached the same conclusions as did the original, invalid Board panels.  See Daily Labor Report (Bloomberg-BNA, 11/10/14), reporting on NLRB General Counsel Richard Griffin’s remarks at ABA labor and employment conference, November 6, 2014.

In Noel Canning, the Supreme Court held that the recess appointments of Board members Sharon Block, Richard Griffin and Terence Flynn on January 4, 2012 were unconstitutional, and therefore invalid.   As a result, the Board had only two validly appointed members at the time of its Noel Canning unfair labor practice decision until August, 2014, when members Johnson, Miscimarra and Hirozawa were sworn in.

Many other invalidated decisions await Board reconsideration. We anticipate the Board will be reached the same results in those cases, as well.  As we noted in our article, “Supreme Court Issues Historic Decision on President’s Recess Appointment Power,” "the current Board will move swiftly to reconsider all of [the decisions invalidated by Noel Canning] and essentially reconfirm them — the composition of the current Board is not unlike the composition of the Board that decided the cases that are now under question.”