While the Supreme Court decides whether to review the Noel Canning and New Vista Nursing & Rehabilitationdecisions, employers are challenging the authority of the National Labor Relations Board to act in other contexts because of the arguably invalid recess appointments of its members. Recent nominations to fill all Board seats are expected to reach the full Senate next month, but even if all the nominees are confirmed, cases already decided by the Board may be tainted by the involvement of the invalid recess appointees.

In Overstreet v. SFTC, LLC, the employer, Santa Fe Tortilla Company, moved to dismiss an NLRB Regional Director's action for a Section 10(j) injunction. Regions may seek injunctive relief in cases where the Region believes that the Board's usual remedies will somehow be undermined if injunctive relief is not granted sooner. The employer contended that the Board's lack of a quorum prevented it from seeking Section 10(j) injunctive relief and invalidated its attempted delegation of power to the Acting General Counsel of the Board in 2011.

Judge Robert C. Brack of the U.S. District Court for the District of New Mexico denied the employer's motion to dismiss. He held that even if the Board had no quorum to seek the injunction now, and even if the 2011 delegation to the Acting General Counsel was invalid, an earlier delegation made in 2001 was valid. He ruled that the 2001 delegation survived to the present time, because it was to be effective "any" time the Board lacked a quorum and would be revoked "whenever" there was a quorum. Judge Brack found that the use of the word "whenever" meant that the delegation order was intended to spring back into effect "whenever" the Board lacked a quorum.

The employer also argued that injunctive relief was inappropriate where the Board could not issue a final remedial order because of the lack of a quorum. The judge rejected that argument as unripe, ruling that these were events that might or might not actually occur.

Finally, the employer argued that the court should stay the Section 10(j) injunction proceedings in the District of New Mexico during the pendency of a petition for writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit. The judge rejected that argument as well, finding that a stay would be detrimental to the Board's interests and would not conserve judicial resources.

In In re CSC Holdings, LLC, the employer, a holding company for Cablevision Systems of New York, is seeking a writ of mandamus in the D.C. Circuit to stop two NLRB Regional Offices from processing unfair labor practice charges on which the Regions issued complaints for alleged interference. The employer contends that the Regional Directors of Region 2 in Manhattan and Region 29 in Brooklyn were invalidly appointed because the Board that appointed them lacked a quorum. (Under the NLRA, appointment of Regional Directors is a power given to the Board.) Therefore, the employer argues, the Regional Offices have no power to issue complaints or process charges.

[Disclosure Note - Constangy lawyers have made a similar argument on behalf of an employer in an unfair labor practice case involving another Region of the NLRB, contending that the appointment of an Administrative Law Judge by a Board that lacked a quorum was void.]

The Board has asserted that the Regional Directors, in processing complaints on charges, are acting as agents of the General Counsel, independent of Board authority, and therefore that the lack of a Board quorum has no significance. The D.C. Circuit has not ruled on the merits of the case.

This type of challenge to the Board's authority is likely to continue until the Supreme Court issues a decision in Noel Canning and, possibly, New Vista. If the Court agrees to review either or both of these cases, a decision is not expected until sometime in 2014.