As we reported in our General Memorandum 14-049 (July 2, 2014), the U.S. Supreme Court’s recent decision in National Labor Relations Board v. Noel Canning invalidated President Obama’s 2012 recess appointments of three members to the National Labor Relations Board (NLRB). The Court’s decision means that the NLRB lacked a quorum between January 4, 2012 until July 30, 2013 and the decisions made by the NLRB during that period were also invalid. There were nearly 100 cases in the federal appellate courts affected by the ruling.
Section 10(d) of the National Labor Relations Act gives the NLRB the discretion to set aside or modify findings or orders until the record of the case has been filed in federal appellate court. The NLRB has stated that it will modify or set aside the orders in such cases. In the remaining cases, the NLRB has filed motions asking the appellate courts to vacate and remand the cases to the NLRB. So far, the federal appellate courts have agreed to the NLRB’s requests.
Three of those cases involve the authority of unions to organize workers at Indian casinos. The NLRB has asked the Sixth Circuit Court of Appeals to vacate and remand the Saginaw Chippewa Indian Tribe of Michigan v. NLRB and Little River Band of Ottawa Indians v. NLRB cases, and has asked the Tenth Circuit to vacate and remand the Chickasaw Nation v. NLRB case. The Chickasaw Nation did not oppose the NLRB’s request for remand, but asked the Tenth Circuit to hold the case in abeyance (temporarily set the case aside) during the remand rather than vacate the decision. The Tribe’s request is based on the assumption that the NLRB will essentially reaffirm its previous order in the case, which means that the Tribe and the NLRB will wind up in the same position before the Tenth Circuit as they are now. Thus, the Tribe’s request for abeyance would give the Tenth Circuit the power to order the NLRB to fast track the case on remand, but on July 22, 2014, the Tenth Circuit granted the NLRB’s request to vacate and remand the case back to the NLRB.
The Saginaw Chippewa Tribe has similarly objected to the NLRB’s request and asked the Sixth Circuit to hold the case in abeyance during the remand. The Little River Band, however, has objected to both motions to remand and vacate, citing the hardship caused by the additional time and resources and arguing that the NLRB effectively waived the question of its authority and thus the Noel Canning decision is not at issue in the case. On July 28, the Sixth Circuit ordered the NLRB to respond to the Little River Band’s objections by August 4, 2014.
Please let us know if we may provide additional information regarding the disposition of these cases and their implications for labor practices in Indian Country.