The National Labor Relations Board (NLRB) issued a short statement on March 12, 2013, indicating its intention to file a petition for certiorari with the United States Supreme Court seeking review of the U.S. Court of Appeals for the D.C. Circuit’s decision in Noel Canning v. NLRB, rather than seeking en banc rehearing at the appellate level.
In Noel Canning, the D.C. Circuit held that President Obama’s January 4, 2012, recess appointments of three Board members (Sharon Block, Richard Griffin, and Terence Flynn) were invalid because the appointments did not occur during “the Recess” of the Senate. That holding gives employers a strong argument that the NLRB has not had a valid quorum of three members from January 4, 2012 to the present. If the Supreme Court affirms the D.C. Circuit’s decision, it will mean that the Board lacked the authority to issue its decisions after January 4, 2012—including many of the controversial decisions that have impacted employers over the last year. Many employers are already raising a “lack of quorum” defense in pending NLRB cases, relying upon the holding in Noel Canning. (For a detailed discussion of the Noel Canning decision, click here.)
The NLRB’s deadline to file its petition for certiorari with the Supreme Court is April 25, 2013. This blog will continue to cover the Noel Canning case as it moves forward.