NLRB authority is being challenged on several fronts following Noel Canning (for details on this decision, see RECESS APPOINTMENTS AT NLRB UNCONSTITUTIONAL, FEDERAL APPEALS COURT RULES. The following case, involving a representation petition filed at the NLRB by a union seeking to represent a group of an employer’s employees, is just one example.

 District 1199J of the National Union of Hospital and Health Care Employees petitioned the NLRB’s New Jersey Regional office (Region 22) to represent all full-time and regular part-time patient service technicians working in several locations of Laboratory Corp. of America Holdings. At the Board hearing, the Company moved to dismiss the petition, citing the District of Columbia Circuit Court of Appeal’s Noel Canning decision. The Court had held the recess appointments of three members of the NLRB were unconstitutional and invalid, and therefore, the NLRB did not have the authority to act. The Regional Director refused to dismiss the petition and directed an election.

The Company then sought to enjoin the NLRB in the United States District Court for the District of Columbia, again citing the appeals court’s  Noel Canning decision. The NLRB responded by requesting the injunction case be heard in New Jersey federal district court instead. On April 4, 2013, District of Columbia United States District Court Judge Reggie B. Walton granted the NLRB’s request and transferred the case to the federal court in New Jersey.. The Judge noted that “there is a strong local interest in having the controversy decided in the district of New Jersey, where the affected employees are located.”

Not surprisingly, the NLRB viewed the District of Columbia federal court as unfriendly to its contention that Noel Canning was wrongly decided. Indeed, since that case was decided by the Court of Appeals for the District of Columbia, the lower federal court there is bound by the Noel Canning decision.

This case is an example of the challenges employers are raising to NLRB authority since Noel Canning was decided. It remains to be seen how the New Jersey federal court will rule on the ultimate issue – whether the Regional Director’s denial of Laboratory Corp.’s Motion to Dismiss and his direction of election are valid. However, one thing is certain -- there  will be many more challenges to the NLRB’s authority in the wake of Noel Canning.