Noel Canning and New Appointments

Previant Law Firm

The Supreme Court has agreed to take up the Noel Canning case, to determine the constitutionality of President Obama’s three recess appointments to the NLRB in January 2012. NLRB v. Noel Canning Div. of Noel Corp., U.S., No. 12-1281, cert. granted 6/24/13. Because of the Supreme Court decision in New Process Steel v. NLRB that the Board lacked the authority to operate with two members  and Congress’s filibuster of new presidential nominees to the Board, President Obama made recess appointments to keep the NLRB functioning when the Board was down to two members.

With Noel Canning in the background, as well as the President’s right and ability to make appointments to any federal agency or division and a threat by Senate democrats to modify appointment rules, the Senate reached a deal whereby the President would withdraw his previous  nominees—recess appointments—and instead nominate new individuals. President Obama recommended for appointment to the NLRB Nancy Schiffer, a recently retired AFL-CIO Associate General Counsel, and Kent Yoshiho Hirozawa, also a labor attorney. A hearing on their nominations was held on July 23, 2013, by the US Senate Committee on Health, Education and Pensions.