Advanced Disposal Svcs East v. NLRB — agency/labor — affirmance — Smith

The Supreme Court held in Noel Canning that the National Labor Relations Board lacked a quorum in 2012 and 2013 because the recess appointments of three of its members were invalid. The case decided today by the Third Circuit involved NLRB actions that were initially invalid but later were ratified by the then-properly-constituted board. The court held that the ratification sufficed to support the board’s actions, and on the merits held that the board’s ruling was supported by substantial evidence. On a preliminary issue — whether the employer forfeit its challenge to NLRB authority by failing to raise the issue before the board — the Third Circuit expressly deepened a circuit split, joining the D.C. Circuit against the Eighth Circuit. I doubt we’ve heard the last of this case.

Joining Smith was Hardiman; Sloviter also was on the panel when it heard argument but assumed inactive status before the opinion issued. Arguing counsel were Daniel Barker for the employer and Kellie Isbell for the NLRB.