The National Labor Relations Board announced on March 12, 2013, that it will not seek en banc rehearing of Noel Canning v. NLRB et al., Nos. 12-1115 and 12-1153 (D.C. Cir. Jan. 25, 2013), in which the U.S. Court of Appeals for the District of Columbia Circuit held that the President’s January 4, 2012 recess appointments of three members to the Board were invalid. Instead, the Board, in consultation with the Department of Justice, intends to file a petition for certiorari with the U.S. Supreme Court for review of that decision. The petition for certiorari is due on April 25, 2013.
Currently, Chairman Mark Gaston Pearce is the only member of the Board whose appointment is valid under the reasoning of Noel Canning. Confirmed by the Senate on June 22, 2010, he serves a term ending on August 27, 2013.
If the U.S. Supreme Court accepts the case, oral argument likely will be scheduled sometime during the Supreme Court’s term that begins in October 2013. Until the Supreme Court issues an opinion, the current uncertainty remains, and cases, rulemaking and appointments made by the Board since August 2011 may be subject to legal challenge.
For prior postings on Noel Canning, click here and here.