The National Labor Relation Board’s petition to the U.S. Supreme Court for review of Noel Canning was filed on April 25. The Supreme Court will be the most important battleground for resolution of the question whether President Barack Obama’s recess appointments of NLRB Members Sharon Block, Richard Griffin and former-Member Terence F. Flynn were constitutional. (For more on Noel Canning, see our article, Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.)
Even as the Supreme Court considers the petition for review, other skirmishes over the appointments will continue. A number of them are being fought now. In one recent decision, the U.S. District Court for the District of Columbia transferred a Noel Canning dispute to the federal District Court in New Jersey based on the NLRB’s request. (SeeNoel Canning Update: NLRB Fights Back.) Congress has entered the fray as a bill prohibiting the NLRB from acting at this time makes its way from the U.S. House of Representatives to the Senate.
The House passed H.R.1120, the “Preventing Greater Uncertainty in Labor-Management Relations Act,” by a 219-209 vote. The bill states, “The Board shall not appoint any personnel, nor implement, administer, or enforce any decision, rule, vote, or other action decided, undertaken, adopted, issued, or finalized on or after January 4, 2012, that requires a quorum of the members of the Board.” These prohibitions would cease when one of three circumstances exists: (1) the NLRB has a quorum consisting of Senate-confirmed members; (2) the Supreme Court issues a decision of the validity of the disputed recess appointments; or (3) a sine die adjournment (an adjournment without another date or time to meet having been set) of the first session of the 113th Congress. (The sine die adjournment would mark the end of the recess appointments of Members Block and Griffin.) Except where the prohibitions terminate because of a Supreme Court decision, the bill also would require a Senate-confirmed quorum of the Board to act upon any of the decisions the Board made when the recess appointments were in question before those decisions may be enforced.