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Labor Relations Update

Despite Supreme Court’s Grant of Review in Two Important Labor Cases, the Action in the Short Term is in the DC Circuit

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It came as no surprise to most labor practitioners this week that the Supreme Court granted certiorari to review the U.S Court of Appeals for the District of Columbia Circuit’s decision in NLRB v. Noel Canning, No. 12-1281.  That case, of course, involves the validity of the President’s recess appointments of three NLRB members in January, 2012 and, more broadly, the question of when the President can make recess appointments.  You can read our earlier posts on this case here and here

What was somewhat unexpected was the Supreme Court’s decision to review the Eleventh Circuit’s decision in Unite HERE Local 355 v. Mulhall, Nos. 12-99 and 12-312.  The issue in Mulhall is whether an employer’s compliance with a voluntary recognition and neutrality agreement  constitutes delivery of a “thing of value” to a labor organization in violation of Section 302 of the Labor Management Relations Act, 29 U.S.C. Sec. 186.  We had previously noted the issue here.  The legality of such agreements, which have become an important tool in union organizing, is on the line in this case. 

But overshadowing these two cases, at least in the short term, is a group of consolidated cases in the DC Circuit, in which the petitioning parties are seeking a writ of mandamus or prohibition against the NLRB, barring it from continuing to issue decisions and authorizing the NLRB Acting General Counsel to seek 10(j) injunctions.  The petitioners base their request, of course, on the DC Circuit’s decision in Noel Canning.  The case is styled In re: Jeanette Geary, No. 13-1029 (D.C. Cir.), and oral argument is scheduled for September 16, 2013.